Duval v. Advance Thresher Company

• Court: Nebraska Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Duval v. Advance Thresher Company, 123 N.W. 1022, 85 Neb. 184 (Neb. 1909)
• Decision Date: 14 December 1909
• Parties: HARVEY M. DUVAL ET AL., APPELLEES, v. ADVANCE THRESHER COMPANY, APPELLANT

123 N.W. 1022

85 Neb. 184

HARVEY M. DUVAL ET AL., APPELLEES, v. ADVANCE THRESHER COMPANY, APPELLANT

Supreme Court of Nebraska

December 14, 1909

OPINION

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. Plaintiff's 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 plaintiffs' 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...