Bishop v. Middleton

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

43 Neb. 10

61 N.W. 129

BISHOP

v.MIDDLETON ET AL.

Supreme Court of Nebraska.

Dec. 4, 1894.

Syllabus by the Court.

1. It is unnecessary to plead what the law presumes. Therefore, a pleading which avers facts from which the law presumes another fact sufficiently pleads that other fact.

2. Assignments of error not specifically called to the attention of the court by brief or argument will be deemed waived, although a party, in his brief, states generally that he does not desire to waive any assignment.

3. The decision in Manufacturing Co. v. Fleming (Neb.) 58 N. W. 226, in regard to the validity of the act to provide for the better protection of the earnings of laborers, servants, and other employés of corporations, firms, and individuals engaged in interstate business (section 531, Code Civ. Proc.), followed and reaffirmed.

4. The term in the title of that act, “corporations engaged in interstate business,” construed with reference to the object of the act, means a corporation doing business and employing men in this state, and having in another state such a situs as to permit of its being reached by process of garnishment there.

5. The act referred to applies to a case where the debt was incurred before the passage of the act, and was assigned in good faith to a third person after its passage, but where such third person thereafter again assigned it for the purpose of evading the exemption laws of this state.

6. An assignment for the purpose of evading the effect of our exemption laws was unlawful before, as well as after, the passage of the act, and the act affects only the remedy. Its application to the case of debts incurred prior to its passage does not, therefore, impair the obligations of contracts.

7. Evidence examined, and held sufficient to sustain the verdict.

Error to district court, Lancaster county; Tibbets, Judge.

Action by William Middleton against John S. Bishop and another. From a judgment for plaintiff, defendant Bishop brings error. Affirmed.John S. Bishop, in pro. per.

Adams & Scott, Hall & Patrick, W. P. Hall, and H. F. Rose, for defendants in error.

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 employees of corporations, firms, or individuals engaged in interstate business.” This act appears as sections 531c-531f, Code Civ. Proc., and is quoted at large in the opinion in Manufacturing Co. v. Fleming (Neb.) 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 60 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. One hundred and fourteen dollars and seventy-eight cents 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 respects the ruling complained of is erroneous. Where one assigns generally that there was error in a certain ruling, he must, by argumentorally, 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...