Cortelyou v. Maben

• Decision Date: 15 May 1894
• Docket Number: 5632
• Citation: 59 N.W. 94,40 Neb. 512
• Parties: J. G. CORTELYOU ET AL. v. LUTHER B. MABEN ET AL
• Court: Nebraska Supreme Court

59 N.W. 94

40 Neb. 512

J. G. CORTELYOU ET AL. v. LUTHER B. MABEN ET AL

No. 5632

Supreme Court of Nebraska

May 15, 1894

ERROR from the district court of Holt county. Tried below before BARTOW, J.

AFFIRMED.

H. M Uttley, for plaintiffs in error:

A forthcoming bond, reciting the sheriff's seizure of certain property under a writ of detinue in the case, and conditioned for the delivery of it with other property if the suit fails, estops plaintiff from showing that such property was not so seized, or that it did not go into his possession under the bond. (Hill v. Nelms, 5 So. Rep. [Ala.], 797; Case v. Steele, 8 P. [Kan.], 242; Smith v Fargo, 57 Cal. 157; McMillan v. Dana, 18 Cal 339; Bowers v. Beck, 2 Nev., 150; Higdon v. Vaughn, 58 Miss. 572; Goebel v. Stevenson, 35 Mich. 172; Gray v. MacLean, 17 Ill. 404; Dorr v. Clark, 7 Mich. 310; Easton v. Goodwin, 22 Minn. 426; Fowler v. Scott, 11 Ark. 675; Oelrichs v. Spain, 15 Wall. [U. S.], 211; Towle v. Towle, 46 N. H., 431; Heard v. Lodge, 20 Pick. [Mass.], 53; Rapelye v. Prince, 4 Hill [N. Y.], 123; Dowling v. Polack, 18 Cal. 626; Warner v. Matthews, 18 Ill. 86; Ferguson v. Glidewell, 2 S.W. [Ark.], 711; Bowden v. Taylor, 6 S.E. [Ga.], 277.)

M. F. Harrington, contra.

OPINION

NORVAL, C. J.

This is an action brought by the plaintiffs in error against defendants in error upon a delivery bond, executed by the defendants for the release of certain personal property, which was taken under order of attachment issued out of the county court of Hall county in two actions pending in said court, wherein Luther B. Maben was defendant, and in one of which J. G. Cortelyou, Ralph Ege, and M. N. Van Zant, parties doing business under the name of the Bank of Ewing, were plaintiffs, and in the other, Grace Reed, Ellis O. Jones, Freeman P. Kirkendall, and Charles A. Coe, partners under the name and style of Reed, Jones & Co., were plaintiffs. The petition filed in the court below alleges the issuance of the writs of attachment, and that the same were levied by one Marshall L. Swain, a constable, upon the goods and property of the defendant in the original actions, Luther B. Maben; that for the purpose of procuring a release of the attached property the defendants executed and delivered to the constable the bond, which is the foundation of this suit; that the bond was approved by the officers, and the property held by him under said attachments was surrendered to the defendant Maben, and the same has ever since remained in his possession or under his control. The petition further avers that the bond has been lost and cannot be found; that said orders of attachment are in full force, and the same have been upheld, approved, and sustained, and a judgment in favor of the plaintiffs has been recovered in each of said cases; that an execution has been issued upon each of said judgments for the purpose of selling the attached property in accordance with the orders of the court, and a return of the property for the purpose of sale demanded of the defendants, yet no part thereof has ever been delivered to the plaintiffs or the constable; wherefore plaintiffs ask judgment for $ 819.36, the value of the property. The defendants, in their answer, admit the recovery of the judgments mentioned in the petition, but deny every other averment therein contained. There was a trial by jury, and at the close of plaintiff's testimony, by direction of the court, a verdict was returned for the defendants.

Numerous objections were made, and exceptions taken, by the plaintiffs to the rulings of the court below excluding evidence offered by them, and several of the rulings are urged in the brief of counsel as grounds for reversal. The decisions of which complaint is now made cannot be considered, for the reason that the same are not sufficiently raised in the petition in error. The only paragraph therein relating to this branch of the case is the fourth, which is in the following language:

"4. The court erred in its rulings upon the introduction of evidence offered by the plaintiffs, which were duly excepted to at the time."

This assignment does not, in the least, indicate what particular piece of testimony was improperly admitted or excluded. The errors relied on for a reversal of a judgment must be specifically pointed out in the petition in error. It is the settled law of this state that such an assignment in a petition in error is too indefinite to present for review the rulings of the trial court on the admission of testimony. (Lynam v. McMillan, 8 Neb. 135; Burlington & M. R. R. Co. v. Harris, 8 Neb. 140; Graham v. Hartnett, 10 Neb. 517, 7 N.W. 280; Lowe v. City of Omaha, 33 Neb. 587, 50 N.W. 760; Gregory v. Kaar, 36 Neb. 533, 54 N.W. 859; Farwell v. Cramer, 38 Neb. 61, 56 N.W. 716.) Another reason why the rulings of the district court excluding testimony of plaintiffs' witnesses cannot be considered is that the excluded testimony was not preserved in the bill of exceptions. (Commissioners of Kearney County v. Kent, 5 Neb. 227; Connelly v. Edgerton, 22 Neb. 82, 34 N.W. 76; Yates v. Kinney, 25 Neb. 120, 41 N.W. 128; Burns v. City of Fairmont, 28 Neb. 866, 45 N.W. 175.)

We have now to consider whether the court below was right in directing a verdict for the defendants. The answer put in issue the execution and delivery of the bond and the acceptance thereof by the officer, also whether the attached property was ever surrendered by the constable to the defendant Maben. It was established at the trial that a redelivery bond in attachment, in the usual form, and conditioned as required by statute, was executed by all the defendants about three months after the attachments were levied, which was handed to the constable by Mr. Maben. It also appears that this bond has been either lost or destroyed, and that no formal approval thereof, or the sureties thereon, was ever indorsed upon the instrument by the officer. The contention of the defendants is that the bond was never approved by the constable, and without such approval it was not a binding obligation upon the sureties. It cannot be doubted that until a bond given for the redelivery to the defendants of the property seized under a writ of attachment has been accepted and approved, the sureties are not liable; otherwise the officer levying the writ, upon the delivery of a bond to him, would be compelled to surrender the property to the attaching defendant, even though the person or persons signing the bond as sureties were wholly insolvent. The statute requires that such a bond must be signed by "one or more sufficient sureties resident in the county." (Code, secs. 206, 930.) The officer no doubt may reject the bond on the ground that the surety thereon is irresponsible, because he does not reside in the county, or because the penalty is insufficient. We are unable to find any statute which requires the officer to indorse his approval upon the bond, and when he takes the bond and releases the property from the levy, it will be presumed that he approved the bond. An approval may be implied from circumstances. Thus in Asch v. Wiley, 16 Neb. 41, 20 N.W. 21, it was held that when an appeal bond in the proper amount, with sureties, is filed by the appellant with a county judge within the statutory time, the acceptance of such bond and the spreading it upon the docket is a sufficient approval, unless the appellant is notified of the fact that the county judge declines to approve the bond and the sureties. The case cited being so closely analogous that it may properly be considered as establishing the doctrine that the approval of a delivery bond in attachment may be implied from circumstances. A perusal of the testimony in the case not only fails to establish the approval by the constable of the bond in question, but shows the reverse to be true. Mr. Swain, the constable, testifies that Mr. Maben handed him the bond and demanded a return of the goods, which request was not then complied with, the officer stating that he did not know whether the sureties were good or not, as he was not acquainted with them; that subsequently the witness served a written notice upon Mr. Maben, as well as told him, that he would not accept the bond. This testimony is uncontradicted, and entirely negatives an acceptance and approval of the bond. The instrument, therefore, was not operative, nor were the sureties liable thereon. It is urged that the judgment should be affirmed for the further reason the attached goods were never delivered by the constable to Maben. The only evidence in the record as to what was done with the goods is found in the testimony of Mr. Swain, the officer who levied the attachments, and is as follows:

Q. You may now state what was done with those goods after they were attached.

A. They were invoiced and put into a room in the west end of the store building--west end of the main building--and...