Elder v. Frevert
| Decision Date | 20 December 1884 |
| Parties | ELDER v. FREVERT and others. |
| Court | Nevada Supreme Court |
Appeal from the Second judicial district court, Ormsby county.
R. M Clarke, for appellants.
T Coffin, for respondent.
Elder recovered judgment against defendant Williams, as sheriff for the recovery of a wagon and two horses exempt from execution, together with damages for their detention. The cause was appealed, and the judgment of the district court affirmed. Pending the appeal, Williams retained the possession of the property. The present action was brought for the recovery of damages for the detention during the period of time intermediate the rendition of the former judgment and the return of the property. The property was taken and held by defendant Williams at the instance of Frevert, Wagner, and Boles, under process of attachment issued in actions severally commenced by them against Elder. Appellants claim that this action will not lie against the defendants other than Williams because they are not guilty of trespass against the property of plaintiff. It has long been settled that an execution creditor, under whose direction a levy is unlawfully made, is liable, and may be sued with the sheriff in an action for the trespass. In such cases both are wrong-doers. Marsh v. Backus, 16 Barb. 483; Allen v. Crary, 10 Wend. 349; Acker v. Campbell, 23 Wend. 372; Flewster v. Royle, 1 Camp. 187. In the actions commenced by Frevert, Wagner, and Boles, judgments were recovered against Elder. These judgments were pleaded by way of counter-claim to this action. The defense was disallowed. One of appellants' exceptions involves the ruling upon this point.
The statute exempts two horses and their wagon for the purpose of enabling the debtor to earn a living. The plaintiff has been deprived of the means of earning a living by the use of his team by the wrongful detention for 501 days. If the judgment recovered for this detention can be applied to the payment of the debts of the claimant, the benefits intended by the exemption laws would be unavailing to the debtor. The law must be construed so as to protect him in the possession and use of his team, as well as in the property itself. This must be done by holding the judgment recovered for damages for the conversion not subject to counter-claim. At the trial the district court admitted in evidence the judgment roll and statement on motion for new trial in the case of Elder v. Williams, 16 Nev. 416. A general objection was made to the introduction of this evidence. If it was admissible for any purpose the objection is ineffectual. Parol evidence was first introduced for the purpose of establishing the interest of the defendants in the subject-matter of the litigation, and to show that they controlled the proceedings of the former suit. They were then parties to the litigation within the principle that they were concluded by the former judgment. Among the issues determined by...
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Heitsch v. Minneapolis Threshing Machine Company, a Corporation
...because the proceedings are in the name of the sheriff. Baxter v. Myers, 85 Iowa 328, 39 Am. St. Rep. 298, 52 N.W. 234; Elder v. Frevert, 18 Nev. 446, 5 P. 69. judgment in mandamus is as conclusive as a judgment in any other action, as to the issues determined therein. 19 Am. & Eng. Enc. La......
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Lee v. Dunbar
...misconceived the law or disregarded public policy, it was still decisive of the controversy, and must be followed. See also Elder v. Frevert, 18 Nev. 446, 5 P. 69, involving this specific question, where it was held that a decision in a former case, holding property exempt, was conclusive u......
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Parketon v. Pugsley
... ... Walter, 37 Neb. 267, 55 ... N.W. 867; Murray v. Mace, 41 Neb. 60, 59 N.W. 387; ... Castile v. Ford, 53 Neb. 507, 73 N.W. 945; Elder ... v. Frevert, 18 Nev. 446, 5 P. 69; Bonnel v ... Dunn, 29 N.J.L. 435; Pozzoni v. Henderson, 2 E. D ... Smith (N.Y.) 146; Wilson v. McElroy, 32 ... ...
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Caldwell v. Ryan
...That the letter of the statute on set-offs must give way to the spirit of the exemption statutes has also been held in Elder v. Frevert, 18 Nev. 446, 5 P. 69; Deering & Co. v. Ruffner, 32 Neb. 845, 49 N.W. Millington v. Laurer, 89 Iowa 322, 56 N.W. 533; and in Stagg's Heirs v. Piland, 31 Te......