Cobbey v. Wright

• Decision Date: 01 April 1890
• Citation: 45 N.W. 460,29 Neb. 274
• Parties: J. E. COBBEY, SR., v. J. B. WRIGHT
• Court: Nebraska Supreme Court

45 N.W. 460

29 Neb. 274

J. E. COBBEY, SR., v. J. B. WRIGHT

Supreme Court of Nebraska

April 1, 1890

ERROR to the district court for Lancaster county. Tried below before FIELD, J.

Judgment of the district court reversed and action dismissed.

J. E Cobbey, for plaintiff in error.

N. C Abbott, contra.

OPINION

MAXWELL, J.

This is an action to enjoin a judgment. The petition is as follows:

"Now comes the said plaintiff and files this, his amended petition herein, in accordance with the order of the supreme court of this state, and complaining of the said defendant, says: That the said defendant, Joseph E. Cobbey Sr., has or claims to have a judgment against one Edward Hutchinson, rendered in the justice court in and for Gage county, Nebraska, on the 31st day of July, 1886, for the sum of $ 45 and costs of suit therein taxed; that afterwards, and on or about the 10th day of August, 1886, said defendant, plaintiff in said action against said Hutchinson, filed in said justice court an affidavit in garnishment against this plaintiff and caused a summons in garnishment to issue against this plaintiff out of said justice court in said action; that afterwards, and on or about the 21st day of August, 1886, the justice before whom said case was pending, unlawfully and without any notice to this plaintiff, and without his knowledge or consent, made a finding that this plaintiff was indebted to the said Edward Hutchinson in the sum of $ 100 and thereon made the following order:

"'It is therefore ordered, considered, and adjudged by the court that said John B. Wright, or his agent, pay to the said plaintiff out of the money now in or coming into his hands belonging to said Hutchinson, $ 53 debt and costs forthwith, and plaintiff (Cobbey) have judgment against the said John B. Wright for $ 53 and costs and execution therefor.

T. E. FERRIER,

"'Justice of the Peace.'

"That no summons or notice in garnishment was ever served on him in any manner whatever, nor did he ever, in person or by counsel, appear in any proceedings in said case or the garnishment proceedings therein, or know anything about any such order or judgment, or pretended judgment, until about the 29th day of October, 1886; that he does not owe said Hutchinson or defendant any sum of money whatever, nor did he ever owe either of them any sum of money whatever, nor did he ever own or hold any contract by which he did or ever had any reason to expect that he would become indebted to said Hutchinson in any sum of money whatever, nor did he have any property of any kind whatever in his possession or under his control belonging to the said Hutchinson; that afterwards, and on or about the day of October, 1886, the said defendant caused a certified transcript of said proceedings and order or judgment to be filed in and spread upon the records of the district court in and of Gage county, Nebraska, and a further transcript thereof certified by the clerk of said last-named court, to be filed in the clerk's office of Lancaster county Nebraska, and spread on the records thereof; that the said defendant threatens and is about to enforce the collection of said order or judgment against this plaintiff, and unless prevented by the restraining order of this court, an execution will be issued thereon against this plaintiff, and levied upon his property for the satisfaction of said pretended judgment and thereby cause great and irreparable injury to this plaintiff, plaintiff having no adequate remedy at law; that at the time of the filing of said transcript in the district court of Lancaster county, Nebraska, he was...