Bauer v. Deane
| Decision Date | 25 November 1891 |
| Citation | 33 Neb. 487,50 N.W. 431 |
| Parties | BAUER v. DEANE ET AL. |
| Court | Nebraska Supreme Court |
1. The Bank of V. located at V., in Saunders county, received $1,785 from D., and issued to him a certificate of deposit, signed by S., the president. Afterwards the bank stopped payment, when D. began an action against the bank in Butler county, and caused an attachment to be levied on certain personal property of S. On the next day one B. begun an action by attachment against S. in Saunders county, and the same was levied on the property previously levied upon in favor of D. Held, that the attachment of B. constituted the first lien on the property.
2. In this state an action is begun in the district court by filing a petition and issuing a summons thereon, which is served on the defendant, and an attachment is ancillary thereto. Where, therefore, the petition makes no claim of liability against a defendant, stating no fact from which such liability may be inferred, there is no ground of attachment against him.
3. An amended petition, afterwards filed, which alleges a liability of the defendant to the plaintiff, will not take precedence of liens of other creditors which have attached since filing the original petition.
Appeal from district court, Butler county; MARSHALL, Judge. Affirmed.
Suit by W. E. Bauer against Daniel M. Deane and another to enjoin proceedings under a judgment, and to enforce another judgment in favor of plaintiff. Judgment for plaintiff. Defendants appeal.Clark & Allen, for appellants.
Geo. P. Sheesley, for appellee.
The plaintiff filed a petition in the district court of Butler county, as follows:
“(1) That the defendant Daniel M. Deane on the 21st day of November, 1888, commenced an action in the district court in and for Butler county, Nebraska, against the State Bank of Valparaiso, F. A. Scoville, and George A. Crafts, to recover the sum of $1,785 and interest, alleged to be due to the said Daniel M. Deane on a certificate of deposit issued by said bank to him; and the said Daniel M. Deane at the time of filing his petition in said action caused an order of attachment to be issued against the said defendants from the district court of Butler county, Nebraska, and the said attachment was placed in the hands of the defendant Sumner Darnell, as sheriff of said county, who, by virtue of said attachment levied upon and took into his possession certain property, consisting of a certain grain elevator, certain cribs, certain corn and cobs, taken as aforesaid as the property of the defendant F. A. Scoville, and situate on the grounds of the Fremont, Elkhorn and Missouri Valley R. R. Co., at Dwight, Richardson township, Butler Co., Nebraska.
(2) On the 22d day of November, 1888, the plaintiff herein, W. E. Bauer, commenced an action in the district court of Saunders county, Nebraska, against the said Frank A. Scoville and another, for the purpose of recovering the sum of $1,409 and accruing interest on a certain promissory note given by the defendants therein in favor of the plaintiff, and caused an order of attachment to issue against the defendants therein from the said district court of Saunders county, said attachment being directed to the sheriff of Butler county, Nebraska, by virtue of which said attachment the said sheriff levied upon and took into his possession the elevator, cribs, corn, and cobs above described, taken as the property of defendant Frank A. Scoville, for the plaintiff, W. E. Bauer, on the said 22d day of November, 1888, and made due return of the said order of attachment. That on the 17th day of September, 1889, the said plaintiff recovered judgment against the defendant Frank A. Scoville and another in this said action in the district court of Saunders county, Nebraska, for the full amount claimed therein, to-wit, the sum of $1,432.75, and upon said judgment the district court of Saunders county ordered the sale of all property taken by virtue of the attachment in said action as above set forth for the satisfaction of said judgment.
(3) That in the above-mentioned cause of Daniel M. Deane against Frank A. Scoville and others in the district court of Butler county, no legal service of summons was had on the defendant Frank A. Scoville or any of the said defendants therein, and that said court had no jurisdiction over the said defendants for the reason that at the time of the beginning of said action none of the defendants were, nor are they now, residents of the said Butler county; and the defendant the State Bank of Valparaiso has at no time had a place of business in said Butler county; and that said court had no jurisdiction to issue the attachment in said cause; and for the further reason that the affidavit for said attachment, as made, signed, and sworn to by one William Bays, as agent for the said plaintiff, and filed on the 21st day of November, 1888, was not sufficient to authorize the issuance of the said order of attachment. That after the said affidavit was filed, and the pretended order of attachment had been issued thereon, the attorneys for the said plaintiff, J. C. Roberts and J. W. McLoud, changed and mutilated the said affidavit for attachment, without leave or knowledge of the court, by interlining in this said affidavit the words, ‘and are now non-residents of the state of Nebraska,’ and, further, the words, ‘and the property of the bank,’ and the words, ‘and the creditors of the bank,’ and, further, the words, ‘and the property of the bank,’ in different places throughout the body of the said affidavit, in such manner as to wholly change and destroy the affidavit, and the meaning and intent as it existed at the time the same was filed as aforesaid; and that said affidavit was not sworn to by the plaintiff, or any agent or attorney of his, after such alteration and interlineation as above described. That the affidavit was so changed and mutilated, as above described, after the plaintiff herein had commenced his action against the said F. A. Scoville and another in the district court of Saunders county and the levying of his said attachment therein, fraudulently, and with the intent unlawfully to deprive this plaintiff of his rights in said action and under his said attachment.
(4) That on the 14th day of January, 1889, a pretended answer, purporting to be the answer of the defendant Frank A. Scoville in the said cause of Deane against the said Scoville and others, was filed, which said answer pretended to admit all the allegations of the petition of the plaintiff, and set up no allegation of defense whatever to the action of the said Deane, upon the finding of which the said district court of Butler county, considering the said answer as the appearance of the said Frank A. Scoville, and depending upon the admissions contained in said answer and upon said admissions alone, taking no further testimony in that behalf, rendered judgment against the said Frank A. Scoville in favor of the said plaintiff Daniel M. Deane, and upon said judgment ordered that the property therein attached be sold, and the proceeds applied to the satisfaction of said judgment. The plaintiff herein alleges that the said pretended answer was not the answer of the defendant Frank A. Scoville, but was filed by one Flora E. Scoville, wife of the said Frank A. Scoville. That the said Flora E. Scoville was not the agent of the said Frank A. Scoville for the purpose of making an appearance and filing said answer for him, and had no authority whatever to answer or in any way to appear for the said Frank A. Scoville in the said cause, and knew she had no such authority. That the said pretended answer was filed by the fraud and fraudulent representations of the said Flora E. Scoville to be the authorized agent of the said Frank A. Scoville. That the said pretended answer was indorsed by S. H. Steele & Bro., as the attorneys of the said Frank A. Scoville in said action. That the said pretended answer was procured to be filed by the fraud and fraudulent collusion of the said attorneys for the said plaintiff Daniel M. Deane, Roberts and McLoud, and one Allen, of Valparaiso, Nebraska, and Flora E. Scoville, aforesaid, and the said Daniel M. Deane. That the answer was written and prepared by the said Daniel M. Deane. That the said Allen, acting for the said Deane, as aforesaid, presented the same to the said Flora E. Scoville, and fraudulently procured her signature and verification thereto. That the said J. C. Roberts, fraudulently, and acting in collusion and connivance with the said Daniel M. Deane, Flora E. Scoville, and said Allen, procured the consent of the...
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