First Nat. Bank of Denver v. Lowrey

• Decision Date: 15 February 1893
• Citation: 36 Neb. 290,54 N.W. 568
• Parties: FIRST NAT. BANK OF DENVER v. LOWREY ET AL.
• Court: Nebraska Supreme Court

36 Neb. 290

54 N.W. 568

FIRST NAT. BANK OF DENVER

v.LOWREY ET AL.

Supreme Court of Nebraska.

Feb. 15, 1893.

Syllabus by the Court.

1. The cause was tried in the district court on the 17th day of December, 1889, and 40 days was given to reduce the exceptions to writing. The term of court adjourned without day December 23d, and on the 29th day of the following month the trial judge, on a showing of diligence, granted an extension of 30 days' additional time in which to complete and serve a bill of exceptions. A draft of the bill was served on the attorneys of the successful party on February 19, 1890. Held, that the same was presented in time.

2. No notice of an application to the judge for an order extending the time for preparing and serving a bill of exceptions is necessary.

3. On the granting of such an order, the proper practice is to file the same with the clerk of the district court.

4. Where no amendments are proposed to a bill of exceptions, no notice of the presentation of the bill to the judge for allowance is required to be served on the adverse party.

5. Certificate of the trial judge attached to the bill in this case, although informal, is sufficient.

6. A bill of exceptions must be filed in the district court of the proper county.

7. A general exception to instructions, as “to the giving of the above instructions the plaintiff then and there excepted,” is insufficient to lay the foundation for their review in the supreme court. Exceptions should be specifically taken to each paragraph of the charge, claimed to be erroneous.

8. An erroneous instruction is not cured by merely giving another on the same subject, contradicting it.

9. It is reversible error for the court in its charge to the jury to give undue prominence to a portion of the testimony by special reference thereto, or to direct the jury what weight shall be given to particular items of the evidence.

10. The retention of the possession of personal property by a mortgagor is prima facie evidence of fraud, and the burden is cast upon the mortgagee to establish the bona fides of the transaction. The presumption of fraud arising from the want of change of possession of the thing mortgaged is not conclusive, but may be entirely rebutted by proof of good faith and the absence of an intent to defraud.

11. An instruction in a suit between the creditors of the mortgagor and the mortgagee, which requires the latter, in addition to proof of good faith and absence of a fraudulent intent, to satisfactorily explain why there was not an immediate delivery of the property, and an actual and continued change of possession thereof, is erroneous.

12. A mortgage or bill of sale given by a failing debtor to secure an honest debt is not fraudulent, although the parties to the transaction knew that the claims of other creditors would be thereby defeated, provided the fair value of the property pledged as security does not greatly exceed the amount of the debt, interest, and probable expenses of foreclosure.

Error to district court, Harlan county; Gaslin, Judge.

Replevin by the First National Bank of Denver against Lowrey Bros. and others. There was judgment for defendants, and plaintiff brings error. Reversed.Case & McNeny and C. C. Flansburg, for plaintiff in error.

John P. Maule and Morning & Keester, for defendants in error.

NORVAL, J.

This cause was submitted to this court upon a motion to quash the bill of exceptions, and upon the errors assigned in the petition in error. We will first consider the questions presented by the motion.

Three grounds are assigned for quashing the bill: First. It was served upon the attorneys for the defendants in error out of time. Second. It has never been allowed by the trial judge, or ordered made a part of the record in the case, and it does not contain all the evidence. Third. Because said bill has not been filed in the office of the clerk of the district court.

The record before us shows that the cause was tried to a jury at the December term, 1889, of the district court of Harlan county, and that a verdict and judgment were rendered against the plaintiff in error on the 17th day of December; that 40 days from the rising of the court were allowed in which to reduce exceptions to writing; that the said term of court adjourned without day on the 23d day of December, 1889; that on the 29th day of the following January the trial judge, on the application of plaintiff in error, and a showing of diligence, granted an extension of 30 days from that time in which to complete and serve the bill of exceptions; that on the 19th day of February, 1890, a draft of the bill of exceptions was presented to Morning & Keester, attorneys of record for the defendants in error, who declined to propose any amendments thereto, or to examine it, but protested against the signing of the bill by the judge or clerk, on the ground that the same had not been presented to them for examination within 40 days from the final adjournment of the court. It is plain that plaintiff's draft of the bill of exceptions was served upon the adverse parties in sufficient time. Although the 40 days given from the adjournment of the term to reduce the exceptions to writing had expired, it was presented before the expiration of the additional 30 days granted by the judge. This is conceded. That the judge, under our statute, had the power to thus extend the time for preparing and serving the bill, there is no room for doubt. That no notice of the application to the judge for an extension of time was served upon defendants in error or their attorney is immaterial, since such notice is not jurisdictional. This was expressly decided in McDonald v. McAllister, 32 Neb. 514, 49 N. W. Rep. 377. It is urged that the order of the district judge allowing the extension of time should have been attached to the proposed bill. We think the proper practice is to file the order with the clerk of the district court, which was done in this case immediately following the granting of the order, but it was, by inadvertence of the clerk, placed in the files of another cause, on account of which defendants in error were not aware of the existence of the order until sometime afterwards. It is also claimed no notice of the presentation of the bill to the judge for allowance was served upon defendants in error. Mr. Flansburg, one of the attorneys for plaintiff in error, has filed an affidavit, in which he states that he gave notice to the attorneys of the adverse parties of the time of the presenting of the bill to the judge for his signature. Besides, we are not aware of any statute which requires the giving of a notice in such case. It is only when amendments are proposed that notice of the time and place of the presenting the bill to the judge for settlement and allowance must be given. See Code, § 311. In this case no amendments of any kind were suggested.

The second ground for quashing the bill is contradicted by the record. Appended to the bill of exceptions we find the following certificate of the trial judge: “Febr. 26, 1890. All evidence. True bill. Ordered part of record in this case. William Gaslin, Judge 8th Judicial Dist., Neb.” The foregoing certificate, although quite brief, we think is sufficient.

Although we are unable to find any indorsement upon the bill showing that the same was filed with the clerk of the district court, the evidence before us shows that it was properly filed. Mr. Flansburg, in his affidavit filed in this court in resistance of the motion, states that, “after the same was allowed and signed by the judge, this affiant took the said bill of exceptions personally to the clerk of the district court of this [Harlan] county, and saw him, the said clerk, mark the same ‘Filed,’ and, if the same is not so marked now on the bill of exceptions, said marking has been erased, or the leaf bearing the same destroyed; that said bill was filed the second day after it was allowed.” This testimony is in no respect contradicted or denied by any one. In addition, the clerk of the district court has attached to the record a certificate under his hand and official seal, which states “that the foregoing is the original bill of exceptions in said cause, and also a true and perfect transcript of the petition, answer, reply, and instructions given in said action, as the same are on file and of record in my office.” In view of the facts above stated, and inasmuch as there is no evidence before us tending to show that the bill of exceptions was not properly filed in the district court, the third or last objection to the bill is overruled, and the motion to quash, therefore, must be denied.

All the parties to this suit are creditors of the Alma Milling Company, a corporation doing business at Alma, this state. On the 21st day of December, 1888, the milling company, being indebted to the First National Bank of Denver in the sum of $10,300, executed and delivered to the bank a bill of sale upon the property in controversy, consisting of 1,425 sacks of flour and 500 bushels of wheat, for the purpose of securing its indebtedness to the bank. The bill of sale was duly filed in the proper county on December 22, 1888, but the bank did not take immediate possession of the property under its said bill of sale, but left the property in the possession of the milling company. On the 27th day of December, 1888, the defendants in error sued out writs of attachment against the milling company, and placed the same in the hands of L. E. Allen, the sheriff of Harlan county, for service, who levied the same upon the flour and wheat covered by said bill of sale. The Denver National Bank thereupon brought this suit...