Brunke v. Gruben

• Decision Date: 25 June 1909
• Docket Number: 15,755
• Citation: 122 N.W. 37,84 Neb. 806
• Parties: AUGUST BRUNKE, APPELLEE, v. ALBERT GRUBEN; E. F. RUZICKA, INTERVENER, APPELLANT
• Court: Nebraska Supreme Court

122 N.W. 37

84 Neb. 806

AUGUST BRUNKE, APPELLEE, v. ALBERT GRUBEN; E. F. RUZICKA, INTERVENER, APPELLANT

No. 15,755

Supreme Court of Nebraska

June 25, 1909

APPEAL from the district court for Nuckolls county: LESLIE G. HURD JUDGE. Affirmed.

AFFIRMED.

W. A Bergstresser, for appellant.

Cole & Brown, contra.

ROOT J. REESE, C. J., absent and not sitting.

OPINION

ROOT, J.

Plaintiff caused the First National Bank of Lawrence to be garnished upon a judgment against defendant Gruben. E. F. Ruzicka intervened, claiming title to the money deposited by defendant in said bank. From a judgment in plaintiff's favor, the intervener appealed. The garnishee answered that it was indebted to defendant. Gruben did not resist the garnishment, but testified in Ruzicka's favor, and did not appeal from the judgment. The burden was on Ruzicka to establish title to the disputed property. Racek v. First Nat. Bank, 62 Neb. 669, 87 N.W. 542. One may draw an inference in favor of either plaintiff or Ruzicka, according to the credit given the testimony of Gruben and Ruzicka. The former had been in the saloon business at Lawrence for two years. To his application for a license for 1907, a remonstrance was filed, and the intervener thereupon applied for and secured a license to conduct that business in the building occupied by defendant. Gruben executed bills of sales to Ruzicka for his stock of goods and fixtures, but continued to manage the saloon, deposited in the garnishee bank to his personal credit the receipts of said business, and paid therefrom for merchandise used by him and expenses incurred in operating the saloon. All goods were charged and shipped to Ruzicka. Gruben did not check on said account for the benefit of the intervener, but claims to have paid him cash from time to time. Gruben's name remained upon the saloon window, and he disclaimed any interest in said goods and fixtures when the sheriff threatened to levy thereon, but claimed the bank deposit under consideration.

We will not extend this opinion by further reference to the evidence, but different minds may honestly draw diverse conclusions therefrom. The trial court probably knew the witnesses personally or by reputation, and must have observed their demeanor on the witness stand, and his findings are supported by the evidence.

It is urged that the court did not acquire jurisdiction to try the issue because the execution was not returned ...