Broatch v. Moore
| Decision Date | 05 April 1895 |
| Docket Number | 5702 |
| Citation | 63 N.W. 30,44 Neb. 640 |
| Parties | M. J. BROATCH ET AL. v. R. A. MOORE |
| Court | Nebraska Supreme Court |
ERROR from the district court of Buffalo county. Tried below before HAMER, J.
AFFIRMED.
Cavanagh Thomas & McGilton, for plaintiffs in error.
R. A Moore, pro se.
This was an equitable proceeding in the district court for Buffalo county by which it was sought to prevent the sale of lot No. 814 in the city of Kearney by the defendant Schars, as sheriff, on execution to satisfy a judgment in favor of his co-defendant, Broatch, and against the firm of Nelson & Hanson. An answer was filed, which need not be noticed further, for reasons which will hereafter appear. A hearing was had in the district court, where there was a finding for the plaintiff therein and a decree in accordance with the prayer of the petition. A motion for a new trial was made and overruled and the cause removed into this court for review upon the following assignments of error:
The paper purporting to be a bill of exceptions was, on motion of the defendant in error, stricken from the record at a former term, thus leaving for determination a single question, viz., Is the decree warranted by the pleadings? The finding being for the defendant in error on substantially all of the issues, our examination will be confined to the petition alone, since it is apparent that if a cause be therein stated for the relief sought, the decree must be affirmed. By it we are informed that on the 25th day of October, 1882, N. O. Nelson and John Hanson, then partners doing business in the firm name of Nelson & Hanson purchased the lot above described and procured a deed to be made therefor to said firm. On the 2d day of February, 1884, Nelson, by deed, in due form conveyed his interest in said lot to Hanson, said firm having been dissolved in the meantime by mutual consent. On the 6th day of the same month Broatch, plaintiff in error, recovered a judgment against the said firm in the county court of Buffalo county on a firm indebtedness for $ 335.32 and costs, taxed at $ 2.60, and on the 20th day of the same month caused a transcript thereof to be filed with the clerk of the district court for Buffalo county. On the 2d day of September, 1885, the defendant in error purchased said premises from Hanson and one Gillespie, although the interest of the latter does not appear.
The real controversy relates to the character of the judgment, a transcript of which is attached to the petition and made a part thereof. If regarded as a personal judgment against Hanson, it was a lien upon the premises at the time defendant in error acquired title through his conveyance from the former, and the petition accordingly failed to state a cause of action. On the other hand, it is conceded that if the judgment is against copartnership merely, it is, for the purpose of this controversy, not a lien, and the petition is not subject to demurrer. Turning to the transcript, we observe the action was entitled "M. J. Broatch...
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