Bennett v. McDonald

• Decision Date: 09 November 1899
• Citation: 80 N.W. 826,59 Neb. 234
• Parties: BENNETT ET AL. v. MCDONALD.
• Court: Nebraska Supreme Court

59 Neb. 234

80 N.W. 826

BENNETT ET AL.

v.MCDONALD.

Supreme Court of Nebraska.

Nov. 9, 1899.

Syllabus by the Court.

1. Alleged errors must be specifically assigned in a petition in error, or they will not be reviewed.

2. An assignment in a petition in error that the court erred in sustaining an objection to a question of a certain number, found on a page of a designated number, is sufficiently specific to present the ruling for a review.

3. An objection to testimony on the ground that it is “incompetent, irrelevant, and immaterial” is sufficiently definite and specific.

4. An insolvent debtor may, if necessary, convey all his property to one creditor in payment of a just debt, although it may defeat the collection of other claims.

5. Questions propounded to a witness must not assume the existence of a fact not proven in the cause.

6. An assignment in a petition in error that “the court erred in overruling the objections of plaintiff in error to each of the following questions” (giving the number of the question, and the page of the record where found) is sufficiently specific to entitle the party to have the same reviewed.

7. In an action for conversion, the fair market value of the property at the time and place where appropriated, with interest, is the measure of compensation.

8. A witness should not be permitted to give hearsay testimony.

Error to district court, Douglas county; Dickinson, Judge.

Action by Charles C. McDonald against George A. Bennett and others. On the death of defendant Bennett, Sophia L. Bennett was substituted. Judgment for plaintiff, and defendants bring error. Reversed.Hall & McCulloch, for plaintiffs in error.

W. W. Morsman, for defendant in error.

NORVAL, J.

At the September term, 1897, an opinion was filed in this cause reversing the judgment of the district court of Douglas county. Bennett v. McDonald, 52 Neb. 278, 72 N. W. 268. During the pendency of the error proceeding the principal defendant, George A. Bennett, died; and an order was entered in this court reviving the cause in the name of Sophia L. Bennett, as administratrix of his estate. A second trial has been had in the court below, in which the defendants were again unsuccessful, and they have again brought the record here upon numerous assignments of error.

George A. Bennett was sheriff of Douglas county, and, in his official capacity, levied upon property claimed by Charles C. McDonald a certain writ of attachment issued out of the district court of said county in a cause therein pending, wherein Charles L. Chaffee was plaintiff and one W. L. Irish was defendant. Irish had owned the chattels seized under the attachment writ, and, while such owner, executed to McDonald two bills of sale conveying the property. The latter instituted this action for conversionagainst the sheriff and the sureties upon his official bond. The bills of sale are assailed as being fraudulent and void as to the creditors of Irish. The validity of such transfers was the principal issue in the cause.

The assignments of error first argued in the brief of defendants below relate to the rulings of the trial court upon the admission and rejection of testimony. Of those assignments in the petition in error it is contended by counsel for plaintiffs that they are too indefinite to require any notice to be taken thereof. Consideration will be first given to this contention. The first assignment in the petition in error (and the others are like unto it) is in this language: “The court erred in sustaining the objection made by the defendant in error to each of the following questions, to wit: (a) Question No. 1,653, as found on page 189; (b) question No. 1,711, as found on page 196.” The argument of counsel is that this assignment is not sufficiently specific, because it does not of itself “afford the least idea of what the alleged erroneous ruling is, and seems to have been framed upon the theory that it is sufficient to state where, in this record, this court can, by its own diligence, find the erroneous ruling.” Redman v. Voss, 46 Neb. 512, 64 N. W. 1094, and Insurance Co. v. King, 54 Neb. 630, 74 N. W. 1103, are brought forward to support the contention of counsel. In the first of these cases the assignment was “that the court erred in admitting irrelevant, immaterial, and incompetent testimony”; and in the other case the assignment read, “The court erred in rejecting and refusing evidence offered on behalf of plaintiff in error as appears at record, page 209, 209 1/2, 210, 211, 212, 216, 216 1/2, 217, 220, 223, 224, 230, 238, 239, 240, 241, 243.” Both assignments were held to be insufficient and too indefinite. But neither of these decisions would justify us to hold bad the assignments of error in the case at bar. In neither of the cases mentioned did the assignment convey the least idea or impression of the ruling relied upon for reversal, while here the assignment challenges the attention of the court to the ruling made on a specified, numbered question, found on a specified page. The assignment is as specified and certain as though the identical question had been copied into the petition in error, and does not leave in doubt or uncertainty the ruling of which complaint is made, as was the case in Redman v. Voss. The uniform holdings of this court require that alleged errors be specifically assigned in the petition in error, and the assignment assailed in this case, measured by that rule, is not bad; but it is urged that the assignment does not designate the page of the record where the question referred to in the assignment may be found. This is hypercritical. The number of the page mentioned in the assignment unquestionably refers to the page of the record in the cause, as that alone is before us for review. In the bill of exceptions the questions propounded to witness are numbered progressively, commencing with No. 1, and the pages are likewise numbered. To hold the assignment in question bad would be the adoption of a rule of practice entirely too technical, and which would not assist in the proper administration of justice.

Many of the objections interposed by the defendants to questions propounded to witnesses by opposing counsel were made on the ground that the testimony was irrelevant, incompetent, and immaterial. It is urged that these objections were too general, in that they did not specify the particular grounds upon which the court was requested to exclude the answer to the questions. This contention is not well taken. Bank v. Carson, 30 Neb. 104, 46 N. W. 276.

Question 1,653, on page 189 of the bill of exceptions, and referred to in the first assignment of error, was put to the plaintiff on cross-examination, and was as follows: “You don't know of any that weren't incumbered? Now, then, in view of that fact, do you still say to the jury that you did not know that the effect of the transfers that were being made to you and to Mrs. McDonald would be to prevent the other creditors of W. L. Irish from obtaining their money?” There was sustained an objection that the question was too immaterial. The ruling was entirely proper. Had McDonald known that the transfer in question had the effect to prevent the other creditors of the vendor from collecting their debt, it would not have invalidated the sales, if they were made in good faith and for a sufficient consideration. If McDonald was in fact a creditor of Irish at the time the transfers were made, he had the undoubted right to secure his claims, or receive property in payment thereof, even though other creditors might be thereby prevented from obtaining their money. Jones v. Loree, 37 Neb. 816, 56 N. W. 390;Brown v. Williams, 34 Neb. 376, 51 N. W. 851;Landauer v. Mack, 39 Neb. 8, 57 N. W. 555;Hunt v. Huffman, 41 Neb. 249, 59 N. W. 889. The question was objectionable because it assumed the existence of a fact not proven, as there had been introduced no evidence to show that any transfers of property had been made to Mrs. McDonald.

Question 1,711, at page 196 of the bill of exceptions, which was also propounded on cross-examination of plaintiff, reads thus: “You may explain to the jury how it is that you have all of these notes, whether paid or unpaid; all of these receipts, whether yours or Mrs. McDonald's; all of these particular papers that pertain or relate to this deal between you and Mrs. Irish; and you have been unable to produce any other papers pertaining to any other matters in that business which I asked you about yesterday.” An objection was sustained to...