Halbert v. Rosenbalm

• Decision Date: 22 October 1896
• Citation: 49 Neb. 498,68 N.W. 622
• Parties: HALBERT v. ROSENBALM ET AL.
• Court: Nebraska Supreme Court

49 Neb. 498

68 N.W. 622

HALBERT

v.ROSENBALM ET AL.

Supreme Court of Nebraska.

Oct. 22, 1896.

Syllabus by the Court.

1. An application to have the witnesses excluded from the court room during the progress of the trial of the cause in which they are to be examined is addressed to the sound discretion of the trial judge. Where a request on such action is refused, and no abuse of the discretion is apparent, there is no available error.

2. A verdict upon conflicting evidence, with sufficient evidence to sustain it, will not be disturbed.

3. In an appeal from the county court to the district court the cause must be tried on the same issues as were tried in the county court, unless some new matter has arisen since the trial there, such as payment, etc. Fuller v. Schroeder, 31 N. W. 109, 20 Neb. 631.

4. The general rule is that in an action for the conversion of a promissory note the measure of damages in the event of a recovery is the value of the note at the time of its appropriation, with interest thereon.

5. A promissory note, which provided for interest annually on the principal sum evidenced by it, had been for a number of years in the possession of one who it was determined was not the owner of it, or entitled to its possession, but who, during the time he had the note in possession, collected the annual installments of interest as they became due, and appropriated them to his own use. Held, that an action would lie and could be maintained in favor of the owner of the note for the aggregate amount of the payments of interest so collected against the party who received and appropriated them.

6. Alleged errors in relation to the exclusion of evidence examined, and held that, if any errors in the action of the court, inasmuch as evidence of a like character and to the same effect of that excluded was admitted or appeared in other portions of the evidence, both prior and subsequent to the time of its exclusion, they were without prejudice.

Error to district court, Washington county; Doane, Judge.

Action by Vernon W. Halbert against M. H. B. Rosenbalm on a note. Vilina Wild intervened, and from a judgment in her favor plaintiff brings error. Affirmed.Chas. Offutt, for plaintiff in error.

Jesse T. Davis and W. W. Slabaugh, for defendants in error.

HARRISON, J.

This action was commenced by the plaintiff in the county court of Washington county originally against M. H. B. Rosenbalm, one of defendants, and in the petition there filed it was in substance alleged that on October 5, 1883, the defendant executed and delivered to Vilina Wild a promissory note, which was afterwards, and prior to its maturity, sold by her, and assigned to one Victor G. Lantry; that at the time she sold the note she indorsed the same in blank, and thereby became liable for its payment; that the note was sold and assigned, on the day he purchased it, by V. G. Lantry, to John S. Halbert, who soon thereafter sold and assigned it to the plaintiff, the owner and holder thereof; that no part of the note had been paid except such sums as were thereon indorsed (the note was attached to the petition, and made a part thereof), and that there was due the plaintiff from defendant on the note the sum of $740.77, for which judgment was demanded. The defendant Rosenbalm answered, admitting the execution and delivery of the note, and the amount due and unpaid, as alleged in the petition, but denied the plaintiff's ownership of the note, and alleged that the pretended indorsement of the note by Vilina Wild was a forgery, and that the assignment to plaintiff was by Victor G. Lantry, who had no interest in the note. There was a general denial of any other allegations of the petition. Vilina Wild made application to intervene and plead, and litigate her rights, and she filed what was denominated an answer, in which she admitted the allegations of the petition in regard to the making and delivery of the note to her by Rosenbalm, and denied each and every other allegation in the petition contained, and further pleaded as follows: “(3) And, further answering, I, Vilina Wild, allege: That on or about the 5th day of October, 1883, I left the said note with Victor G. Lantry as a trustee, and for safe-keeping, to be returned to me whenever same was demanded. I have demanded the same, and said Lantry refused to return the same. That I never sold, assigned, or in any way parted with the possession of said note. That the same was left in the possession of said Lantry. That it was presumed by me to be in the possession of said Lantry as trustee, until shortly before the beginning of this suit. That Lantry never informed me, Vilina Wild, that he claimed the ownership of said note. That I, Vilina Wild, never sold or assigned said note to said Lantry, or to any person or persons. That she never made her mark on said note. That the pretended indorsement is fraudulent and unlawful, and is a forgery. That said Vernon W. Halbert and said John S. Halbert are not innocent purchasers of said note. (4) That the plaintiff has collected as interest on said note the following sums of money, to wit: Oct. 3, 1884, $65 12/100; Nov. 4, 1885, $65 12/100; Dec. 12, 1886, $65 12/100; Dec., 1887, $65 12/100; Oct. 5, 1888, $65 12/100; Oct. 5, 1889, $65 12/100; Oct. 5, 1890, $65 12/100; total amount, $455.84. That said interest was, and is now, due and owing to Vilina Wild as owner of said note. The said Vilina Wild prays plaintiff's cause of action may be dismissed, and that the ownership of said note may be adjudged in the intervening defendant, Vilina Wild, and that judgment may be entered against the plaintiff herein for the sum of $390.72, with interest at 7 per cent. per annum on the amount above stated to have been paid said plaintiff, from the dates of payment thereof, and for costs of suit.” To this the plaintiff pleaded as follows: “And now comes the said plaintiff, and for answer to the petition of Vilina Wild, intervener herein, denies each and every allegation in said petition contained, which does not admit the allegations of the petition of this plaintiff herein filed against the defendant M. H. B. Rosenbalm to be true. And this plaintiff, further answering, says that the said Vilina Wild should not recover as intervener in the cause for the following good and sufficient reasons, in addition to the allegations of ownership in the petition of this plaintiff herein filed: (1) That the said Vilina Wild is not the owner and holder of said note, and is not entitled to the proceeds thereof, but sold and assigned the same, and all her interest therein, some time in the month of March, 1884, whereby her said cause of intervention should abate. (2) That on the 18th day of October, 1890, she filed her petition in the district court of Washington county, Nebraska, against one Victor G. Lantry, praying that an accounting be had, and that answer was filed therein by said Lantry, fully accounting to her for said note, and the proceeds thereof, which said issue is now joined, and said cause of action and intervention has never been withdrawn from said cause, but the issues thereof are still pending in the district court of said county. (3) That heretofore, to wit, on the 3d day of January, 1891, the said Vilina Wild brought her action in the district court of said county against Victor G. Lantry and William H. Eller, defendants in replevin, the object and prayer of said petition being for judgment against the defendants for a return of said note and a certain mortgage therewith, or for the value thereof if the same is not returned, and for costs and damages for its detention; and the said issues are now pending in that court.”

The case at bar was tried in the county court, and from a judgment there in favor of Vilina Wild was appealed to the district court of Washington county, wherein the plaintiff filed a petition which was, in substance, the same as that filed in the county court. Rosenbalm answered in like effect as in county court, and the answer filed for Vilina Wild did not differ materially from that filed by her in the county court, except in the amount of the recovery demanded being increased from $390.72 to $445.84. A motion was filed for plaintiff to strike from Vilina Wild's pleading all of paragraph 4 thereof, which is the portion in which the collection of the interest on the note by the plaintiff was stated; also to strike from the prayer all reference to such interest or demand for the recovery thereof. On hearing, this motion was overruled and plaintiff was given leave to plead. The plaintiff then replied to Vilina Wild's answer, stating: “This plaintiff objects and protests against the consideration of any matters or allegations made in said answer, and objects and protests against the trial or hearing of any of the issues offered or tendered in said answer, for the reason that this action was instituted in the county court of Washington county, Nebraska, which said court has a jurisdiction limited to civil cases in any sum not exceeding $1,000, exclusive of costs; and the amount in controversy in this action, as claimed by the said defendant Vilina Wild in her answer and cross petition is more than the sum of $1,000, exclusive of costs, for, inasmuch as the said Vilina Wild in said answer seeks to recover a promissory note of the value of $720 63/100, with interest from October 5, 1890, at nine per cent., and the further sum of $445.84, with interest from dates prior to said October 5, 1890, at seven per cent.;” and also denied each and every allegation of the third and fourth paragraphs of such answer, except as to portions in reply expressly admitted and charged to be true, and further pleaded: “Further replying to said answer of the defendant Vilina Wild, this plaintiff says: (1) That this plaintiff purchased said note, as in his petition alleged, from John S. Halbert, and the said John S. Halbert purchased the same from Victor G. Lantry,--the same ...