Bentley v. Hoagland

• Decision Date: 17 October 1913
• Docket Number: 17,332
• Parties: ETHEL S. BENTLEY, APPELLEE, v. HENRY V. HOAGLAND, SHERIFF, APPELLANT
• Court: Nebraska Supreme Court

143 N.W. 465

94 Neb. 442

ETHEL S. BENTLEY, APPELLEE, v. HENRY V. HOAGLAND, SHERIFF, APPELLANT

No. 17,332

Supreme Court of Nebraska

October 17, 1913

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Reversed.

REVERSED.

Burr Greene & Greene, for appellant.

George A. Adams and B. F. Johnson, contra.

LETTON J. ROSE, SEDGWICK and HAMER, JJ., not sitting.

OPINION

LETTON, J.

Plaintiff is the wife of William A. Bentley. A former wife, Christena Bentley, had been divorced from Bentley, and had recovered a judgment for alimony in the sum of about $ 2,000 which was unsatisfied. Plaintiff and Bentley had some differences, and plaintiff left his home and went to Kansas City. While there she received a letter from L. C. Burr, attorney for the former wife, asking her assistance in the collection of the judgment for alimony, and offering to pay a commission on any money collected on the judgment by her assistance. She came to Lincoln, and, according to the testimony of Mr. Burr and two other witnesses, she stated that the automobile, the ownership of which is in controversy in this action, belonged to Bentley, though she had furnished part of the money to pay for it, and she entered into a written instrument, the purport of which was a recital that Mrs. Christena Bentley was about to issue an execution against Bentley, a statement by her as to Bentley's ownership of the machine, and an agreement that Christena would levy on the automobile, a fur coat, a piano and a sewing machine, and that she (Christena) would bid in the piano and sewing machine at the sale and turn them over to the plaintiff herein, and pay her expenses from Kansas City; the plaintiff also waived any right to the property levied on and granted the same to Christena. A levy was made upon the automobile, plaintiff pointing out and assisting the deputy sheriff in so doing. Afterwards she became reconciled to Bentley and began this action to recover the automobile. The property was taken under the writ, but no bond was given, and it was returned to defendant. The action then proceeded as one for damages under section 193 of the code.

The testimony of the plaintiff was, in substance, that she furnished the money to buy the machine, borrowing part of it from a bank, and that it was her property. She further testified that the paper introduced in evidence bearing her signature, which disavowed ownership, was not signed by her intentionally; that there were two pages of the document; and that Mr. Burr without her knowledge substituted the page she signed for another of entirely different purport. She denied that she pointed out the automobile to the officer or that she stated to him that it belonged to Bentley. Her mother and a sister gave testimony tending to support her in some matters. On the other hand, this testimony as to the occurrence in the law office is contradicted by a number of witnesses, and the deputy sheriff and Mr. Marlay both testify that she pointed out the machine. The sheriff also states that she said to him, after the levy, that the property levied upon belonged to Bentley. The jury evidently believed her version of the transactions.

A majority of my associates think the judgment should...