Duval v. Advance Thresher Co.

• Court: Nebraska Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Duval v. Advance Thresher Co., 85 Neb. 181, 123 N.W. 1022 (Neb. 1909)
• Decision Date: 14 December 1909
• Docket Number: No. 15,464.,15,464.
• Parties: DUVAL v. ADVANCE THRESHER CO.

85 Neb. 181

123 N.W. 1022

DUVAL

v.ADVANCE THRESHER CO.

No. 15,464.

Supreme Court of Nebraska.

Dec. 14, 1909.

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.

PER CURIAM.

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....