Bennett v. McDonald

• Decision Date: 22 September 1897
• Citation: 52 Neb. 278,72 N.W. 268
• Parties: BENNETT ET AL. v. MCDONALD.
• Court: Nebraska Supreme Court

52 Neb. 278

72 N.W. 268

BENNETT ET AL.

v.MCDONALD.

Supreme Court of Nebraska.

Sept 22, 1897.

Syllabus by the Court.

1. Instructions to the jury, whether given or refused, when filed in a cause, are a part of the record, and need not be embodied in the bill of exceptions.

2. An exception to an instruction is sufficiently preserved by the trial court noting the fact on the margin of such instruction.

3. Exception to instructions as a whole is insufficient unless each paragraph is erroneous.

4. Error cannot be successfully assigned upon the admission or exclusion of evidence where no exception was taken to the ruling at the time it was made.

5. A failing debtor conveyed his property to his father-in-law, and the latter was examined as a witness in his own behalf in a suit which he brought against the sheriff, who had seized the property under execution in favor of the creditor of the vendor. Held, that the cross-examination of the witness was too restricted.

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

Action by Charles C. McDonald against George A. Bennett and others. There was a judgment for plaintiff, and defendants bring error. Reversed.Hall, McCulloch & Clarkson, for plaintiffs in error.

W. W. Morsman, for defendant in error.

NORVAL, J.

This action was brought by Charles C. McDonald upon the official bond of George A. Bennett, late sheriff of Douglas county, for the conversion by the latter of a stock of lumber and other personal property. Plaintiff claims the property under and by virtue of two bills of sale executed by W. L. Irish, who was the former owner of all, or the greater portion, of the chattels. The defendant sheriff seized said property under an attachment issued in favor of Clarence L. Chaffee and against the said Irish. The amended answer of the defendants denies the conversion, admits the official character of the defendant Bennett, the execution of the bond, and the levy of the attachment and avers “that the said plaintiff is the father-in-law of the said W. L. Irish; that at the time of the levy of the said writ the said Irish was insolvent, and that he had transfered, or pretended to transfer, all his property used in his said business, and all his property to which his creditors would look for payment of their debts, to the said McDonald, under and by virtue of certain bills of sale, through and under which the plaintiff claims; that the said defendant in levying said attachment writ did so for one C. L. Chaffee, who was a creditor of the said W. L. Irish, and that the said C. L. Chaffee has recovered a judgment therein, and that, after the sale and application of the property taken under this writ in attachment, there is still due to the said C. L. Chaffee the sum of over $2,000; and that the instruments under which said plaintiff claims are fraudulent and void as against the said attachment creditor, C. L. Chaffee, * * * and were made to hinder and delay him in the collection of his debts, and were without consideration.” The reply was substantially a general denial. The trial resulted in a verdict for the plaintiff, and to reverse the judgment entered thereon these proceedings are brought by the defendants.

The assignments of error may be grouped in three classes: (1) The giving and refusal of instructions; (2) the rulings upon the reception and exclusion of testimony; (3) the sufficiency of the evidence to support the verdict and judgment.

It is contended by counsel for plaintiff below that this court cannot review the charge to the jury, or consider any assignment of error based thereon, because the instructions given are not embodied in the bill of exceptions. A like question was determined in Blumer v. Bennett, 44 Neb. 873, 63 N. W. 14, wherein it was ruled that instructions given, as well as refused, on being filed, become a part of the record, and should not be incorporated in the bill of exceptions; furthermore, that exceptions to instructions are properly preserved by the notation of such exceptions on the margin of the instructions. Each request of the defendants to charge which was not given contains the following memorandum on the margin...