Duval v. Advance Thresher Co.
| Decision Date | 14 December 1909 |
| Docket Number | No. 15,464.,15,464. |
| Citation | 123 N.W. 1022,85 Neb. 181 |
| Parties | DUVAL v. ADVANCE THRESHER CO. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Where this court compels a judgment creditor to remit part of his judgment as a condition to an affirmance of his case, and it is made to appear that the judgment has been executed, the creditor will be compelled to make restitution of the money he has collected in excess of the amount to which he is entitled, or, failing to do so, the entire judgment will be reversed.
On motion for rehearing. Overruled, on conditions.
For former opinions, see 119 N. W. 957, and 122 N. W. 880.
Defendant has filed a second motion for a rehearing, and a motion for a modification of the opinion and judgment of this court, should a rehearing be denied. A supplemental transcript has been filed, and we are therein advised that the garnishee paid to the clerk of the district court $514.15, and plaintiffs received therefrom $473.20. Defendant suggests that, if we do not grant a rehearing, we should compel plaintiffs to pay the clerk, for its use, the amount of the remittitur.
Plaintiffs argue that since defendant is a nonresident of the state, and subsequent to the entry of the judgment in district court collected $1,100 of the purchase price of the machinery referred to in this case, whereby further commissions became due them, if they are not permitted to retain defendant's money, they cannot collect their dues. Plaintiffs also show that they are solvent. To the extent of the remittitur imposed by us and filed by plaintiffs, the judgment of the district court is vacated. To the extent that defendant's property was taken to satisfy the sum remitted from the judgment, it was wrongfully taken, and defendant is entitled to restitution. Hier v. Anheuser-Busch Brewing Ass'n, 60 Neb. 320, 83 N. W. 77. Had the facts been brought to our attention upon the former hearings, we would have imposed that further condition in the order last made. We shall go no further, however, than to direct plaintiffs to pay to the clerk of the district court the money collected by them in excess of the $170.45 to which they are entitled. That defendant is a nonresident, and that plaintiffs may be solvent and have a further unliquidated claim against defendant, does not, in our judgment, work an exception to the rule.
Our judgment is, therefore, further modified, so that, unless plaintiffs shall pay to the clerk of the district court in this...
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