Bryant v. Reed

• Decision Date: 19 May 1892
• Citation: 52 N.W. 694,34 Neb. 720
• Parties: SARAH I. BRYANT v. BYRON REED ET AL
• Court: Nebraska Supreme Court

52 N.W. 694

34 Neb. 720

SARAH I. BRYANT v. BYRON REED ET AL

Supreme Court of Nebraska

May 19, 1892

ERROR to the district court for Douglas county. Tried below before DOANE, J.

AFFIRMED.

Mahoney Minahan & Smyth, for plaintiff in error, cited: Deslonde v. Dorrington, 29 Ala. 92; Herman, Estoppel, 22, 41 306; Kemper v. Waverly, 81 Ill. 278; Hiatt v Brooks, 17 Neb. 34; Leighton v. Stuart, 19 Id., 553.

Cowin & McHugh, Geo. F. Brown, and Wm. D. Beckett, contra, cited: Hiatt v. Brooks, 17 Neb. 34.

OPINION

MAXWELL, CH. J.

This action was brought in the district court of Douglas county. Sarah I. Bryant was the plaintiff and James H. McCulloch, William Coburn, Dorsey B. Houck, Samuel D. Mercer, and Byron Reed were defendants. The original petition alleges that the defendant McCulloch, at the time the injury complained of was committed, was county judge; that at the same time defendant Coburn was sheriff and defendant Houck deputy sheriff of Douglas county; that defendant Reed was the agent of one Folsom et al. for the renting of a certain dwelling occupied by plaintiff; that defendant McCulloch, acting within his jurisdiction as a justice of the peace, in a certain action of forcible detention for the recovery of the possession of said dwelling, wherein Sarah Bryan was defendant and the said Folsom et al. were plaintiffs, wrongfully, negligently, and at the instance and request of the said Reed and Mercer, issued a pretended writ of restitution in said case; that said writ was placed by Reed in the hands of Coburn for service, and that the writ was served by the defendant Houck in a fraudulent, illegal, and oppressive manner; that said service was participated in by Mercer and Reed, and that Mercer, Reed, and Houck knew that said writ was illegal. Plaintiff prayed a judgment against all the defendants in the sum of $ 10,000.

On the 27th day of February, A. D. 1888, the defendant McCulloch filed his separate demurrer on the ground that several causes of action were improperly joined and that the petition did not state facts sufficient to constitute a cause of action against him. The demurrer was sustained on the ground of a misjoinder of causes of action and the plaintiff was given leave to docket a separate case against McCulloch. This was done on the 10th of August, 1888. A trial was had against McCulloch and judgment rendered therein. Afterwards, on the 20th day of January, A. D. 1890, an amended petition was filed against McCulloch, Reed, Coburn, Houck, and Mercer which amended petition set up the same cause of action as the original petition. McCulloch did not answer, neither did Coburn. Defendant Mercer answered, specifically denying participation either in the issuing of the writ or in the ejecting of the plaintiff, and avers, in substance, that the trespass, if committed, was committed by him and the other defendants jointly with defendant McCulloch; that a separate trial was granted McCulloch; that the cause of action which was in issue at the separate trial was the same as that set out in the amended petition in this case; that a judgment was had on said cause of action; that the judgment was satisfied and defendant therefore pleads that fact in...