Connolly v. Miller
| Decision Date | 22 September 1887 |
| Citation | 34 N.W. 76,22 Neb. 82 |
| Parties | CONNOLLY AND ANOTHER v. MILLER AND ANOTHER. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The question of intent, in case of an alleged fraudulent conveyance of property, is one of fact, to be decided by the trial jury under the instructions of the court.
Where, in the examination in chief of a witness, a question is asked to which objection is made, which is sustained, the party desiring the evidence must offer to prove the facts sought to be established before error can be assigned upon such ruling.
Where a competent witness is called as an expert to testify as to the value of property, his testimony is not rendered inadmissible by reason of the fact that he had not seen the property since about one month prior to the time when the value was to be established, it being shown by other testimony that the property was in substantially the same condition at both periods of time.
Where a witness is called as an expert to testify as to the value of property in dispute, and it is shown upon examination that he is competent to so testify, and his testimony is taken, and upon cross-examination he is asked if his estimate of values is not based on what he would give for the property, which he answers in the affirmative, a motion to strike from the record all of the testimony of the witness was properly overruled. Such answer would not render the witness incompetent to testify, but, if unexplained, might diminish the weight of his testimony.
As to parties before the court, and respecting a matter within its jurisdiction, a judgment without a finding to support it is not void, but at most merely erroneous, and subject to reversal by a suitable proceeding in a tribunal having authority to review it. Doty v. Sumner, 12 Neb. 378, 11 N. W. Rep. 464.
Where proceedings in attachment are irregular and amendable, but not void, and no objection is made thereto by the defendant in the action, such proceedings cannot be attacked or questioned collaterally by third parties.
Different attachments of the same property may be made by the same officer, and one inventory and appraisement will be sufficient, and it is not necessary to return the same with more than one order. Civil Code, § 209. Therefore when a constable receives an order of attachment, and proceeds to levy the same on a part of a stock of goods, and before making the inventory and appraisement other orders of attachment are placed in his hands for execution, he may properly levy upon property of sufficient value to satisfy all of such orders, and make but one return of the inventory and appraisement. In such case he cannot be charged with making an excessive levy unless the value of the property seized exceeds a proper levy to satisfy all of such orders and probable costs; and even in such case the question can only be raised by the parties to the action. As between third parties in a collateral proceeding, the levy would be valid.
Verdict in an action of replevin held sufficient.
Error from Douglas county; WAKELEY, Judge.
J. J. O'Connor and Thurston & Hall, for plaintiff.
W. A. Redick, Howard B. Smith, and Charles Ogden, for defendant.
This was an action in replevin instituted by plaintiffs in error (who claim the possession of the property in dispute by virtue of a chattel mortgage) against defendants in error, a constable, and the sheriff of Douglas county, who also claimed the possession, but by virtue of the levy of certain attachments upon it as the property of the mortgagor. The contest is between the mortgagees and creditors; the former asserting the bona fides of their mortgage, the latter contending that it is fraudulent. The decision of this question of fact was peculiarly within the province of the trial jury, and we are unable to see that it should be disturbed. The actual indebtedness at the time of the execution of the mortgage was about $1,800, while the mortgage was given to secure two notes,--one for $400, due in 90 days from its date, and one for $7,600, due in five years from date, each drawing interest at the rate of ten per cent. per annum; the former bearing date August 13, the latter August 16, 1883. The testimony in the case is quite voluminous, and we can see no good purpose to be subserved by discussing it at length. While it is true that the fact that the mortgage was given for a larger amount than the actual indebtedness is not by any means conclusive evidence of fraud, and especially so when the explanation is sought to be made that the excess was for the purpose of covering future advances and credits to be made by the mortgagee to the mortgagor, yet such an overstatement of the debt may be said to indicate fraud, and the question then becomes one for the trial jury to decide, under all the circumstances of the case and the instructions of the court. Jones, Chat. Mortg. § 92, and cases there cited. In connection with the fact of the amount named in the mortgage and notes being largely in excess of the actual indebtedness, the further fact that the mortgagor was permitted to retain possession of the mortgaged property, and sell the same in the usual course of trade, (the property being the fixtures, furniture, and stock of liquors in a saloon,) together with the explanation that all the proceeds of such sale were to be applied to the payment of the indebtedness secured by the mortgage, was submitted to the jury under proper instructions. The whole question of fraudulent intent on the part of the parties to the mortgage was before the jury. Their verdict must be final, if no other of the alleged errors occurring on the trial are found to call for a reversal of the judgment.
It was shown by the testimony of Peter Connolly, one of the plaintiffs, that he was in the wholesale liquor trade. He was then asked to “state whether or not it is not the custom among wholesale liquor men to do this kind of business;” referring to taking the notes and mortgage for a larger amount than the actual indebtedness, for the purpose of covering future advances. This question was objected to upon the usual grounds, and the objection was sustained, to which exception was taken, and the ruling of the court is now assigned for error. While we think the ruling of the court was correct, yet, under the repeated decisions of this court, no error can be successfully assigned in such case, without an offer of proof of the facts sought to be established. Mathews v. State, 19 Neb. 338, 27 N. W. Rep. 234;Masters v. Marsh, 19 Neb. 462, 27 N. W. Rep. 438;Lipscomb v. Lyon, 19 Neb. 522. 27 N W. Rep. 731. No such offer was made.
One Stubendorf, who was one of the appraisers in the attachment proceeding, which was about one month prior to the institution of this suit, was a witness, and was asked the value of the property at the time he examined it, and made the appraisement. Over the objection of plaintiff he was permitted to testify. No objection is made as to his competency. It being shown that the property remained in the same condition from the time of the appraisement until the seizure under the replevin proceedings, the testimony was admissible as tending to...
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