Bishop v. Middleton

• Decision Date: 04 December 1894
• Docket Number: 5612
• Citation: 61 N.W. 129,43 Neb. 10
• Parties: JOHN S. BISHOP v. WILLIAM MIDDLETON ET AL
• Court: Nebraska Supreme Court

61 N.W. 129

43 Neb. 10

JOHN S. BISHOP v. WILLIAM MIDDLETON ET AL

No. 5612

Supreme Court of Nebraska

December 4, 1894

ERROR from the district court of Lancaster county. Tried below before TIBBETS, J.

AFFIRMED.

John S Bishop, for plaintiff in error:

The account was sold in Iowa. To support this action the act must have been wrongful or punishable in Iowa, where it took place. Whatever would be a good defense to the action if brought there, must be a good defense here and everywhere. (Cooley, Torts [2d ed.], 552; Bishop, Non-Contract Law, secs 1280, 1281.)

The act of 1889 can only be applied to contracts made since its passage. Laws are construed to be prospective and not retrospective, unless their language imperatively requires such a construction. (Auffm'ordt v. Rasin, 102 U.S. 620.)

The act of 1889 is unconstitutional. The subject is not clearly expressed in its title. The subject-matter of the act as expressed in the title is the protection of wages of persons employed by corporations doing an interstate business, while in the body of the act its operation is not so restricted. The act provides a penalty and defines a crime which are not expressed in its title. The title of an act must express the subject of the bill. (Constitution of Nebraska, sec. 11, art 3; Ives v. Norris, 13 Neb. 252.)

The subject-matter of the act is unconstitutional. It extends the criminal and penal laws of Nebraska over Iowa, and makes the selling of an account in Iowa unlawful, which by the laws of Iowa is lawful. (Burlington & M. R. R. Co. v. Thompson, 31 Kan. 180; Slack v. Gibbs, 14 Vt. 364.) It impairs the obligation of a contract right possessed in the account the subject of the original suit. The value of the account has been diminished by legislation. (Oatman v. Bond, 15 Wis. 22; Homestead Cases, 12 Am. Rep. [Va.], 515; Planters Bank v. Sharp, 6 HOW [U. S.], 301; Green v. Biddle, 8 Wheat. [U. S.], 1; Commercial Bank v. State, 4 Smedes & M. [Miss.], 507; Rees v. Watertown, 86 U.S. 107; Memphis v. United States, 97 U.S. 293.)

The Iowa judgment is conclusive, and estops Middleton, who appeared personally in that action. (Green v. Van Buskirk, 7 Wall. [U.S.], 139; Cole v. Cunningham, 133 U.S. 107; Uppinghouse v. Mundel, 103 Ind. 238; Morgan v. Neville, 74 Pa. St., 53.)

L. C. Burr, also for plaintiff in error.

W. P. Hall, Halleck F. Rose, and Adams & Scott, contra, cited: Albrecht v. Treitschke, 17 Neb. 205; Wright v. Chicago, B. & Q. R. Co. , 19 Neb. 182; Union P. R. Co. v. Smersh, 22 Neb. 751; Snyder v. Brune, 22 Neb. 189.

OPINION

See opinion for statement of the case.

IRVINE, C.

In 1888 Middleton was indebted to the defendant in error, Dr. Latta in the sum of $ 91, for professional services. The plaintiff in error, Bishop, was an attorney at law, and in November, 1888, the account was placed in his hands for collection. The legislature of 1889 passed an act entitled "An act to provide for the better protection of the earnings of laborers, servants, and other employes of corporations, firms, or individuals engaged in interstate business." This act appears as sections 531c-531f, Code of Civil Procedure, and is quoted at large in the opinion in Singer Mfg. Co. v. Fleming, 39 Neb. 679, 58 N.W. 226. After this act took effect, and on November 11, 1889, Dr. Latta assigned this account to Bishop, who assigned it later to one West, an attorney at law practicing in Council Bluffs, Iowa. West assigned it to one Tucker, and as attorney for Tucker began suit in Iowa aided by attachment. Middleton was then employed by the Chicago, Burlington & Quincy Railroad Company, and was working at Holdrege, in this state. The railroad company was garnished and wages earned by Middleton within sixty days were seized and applied to the satisfaction of the judgment, which was finally rendered in the case by the Iowa court. Middleton was the head of a family, and there is no doubt that the wages so seized were exempt under the laws of Nebraska; $ 114.78 was the sum so seized and applied to the payment of the judgment. Middleton then brought his suit against Bishop and Latta to recover back the sum so seized, together with his expenses, alleging that the assignment from Latta to Bishop was for the purpose of avoiding the law of Nebraska concerning exemptions. There was a trial to a jury and a verdict and judgment in favor of Middleton against Bishop for $ 103.74. The jury found in favor of the defendant Latta. There is no averment in the petition that the assignment from Bishop to West was for the purpose of avoiding the effect of the exemption laws of this state, but the petition avers that a suit was instituted in Iowa, that service of garnishment summons was made to seize exempt wages of Middleton, and under section 531e of the Code of Civil Procedure, being section 3 of the act referred to, this constitutes prima facie evidence of an evasion of the laws of Nebraska, and the facts alleged raise a legal presumption of such evasion. It is not necessary to plead what the law presumes; and the facts being pleaded which raised this presumption, it was unnecessary to plead expressly the unlawful intent. To reverse the judgment so rendered against him Bishop prosecutes error.

Several assignments of error will not be noticed, for the reason that they are not referred to in the briefs, and must therefore be deemed waived. It is true that the plaintiff in error says in his brief that he does not wish to waive the assignments not noticed therein; but the reason of the rule whereunder such assignments are treated as waived is not merely an inference as to the intention of the plaintiff in error. This court has a right to require, and does require, not only that alleged errors shall be specifically assigned, but that counsel in argument, or in the briefs, shall point out in what respect the ruling complained of is erroneous. Where one assigns generally that there was error in a certain ruling he must by argument, orally or in his brief, indicate wherein the error lies; and this court will not, in the absence of such indication, undertake to investigate and discover such error. Many of the points urged in argument have since the submission of this case been considered and decided in the case of Singer Mfg. Co. v. Fleming, supra. In fact it may be stated that this case presents every question presented in that except the one covered by the fifth point of the syllabus in the former case. It is unnecessary to restate or rediscuss these questions. The decision in Singer Mfg. Co. v. Fleming, so far as it is applicable here, is adhered to.

It is urged that the verdict is not sustained by the evidence, for the reason that there is no evidence tending to prove that the sale of the account by Bishop to West was for the purpose of avoiding the effect of the laws of this state, that there is no evidence that Bishop aided or counseled a violation of the act in question, or that he caused to be done any of the acts made prima facie evidence of an evasion of our law. The evidence does show that Bishop assigned the account to West; that West resided in Iowa, and was there practicing...