Haverly v. Elliott

• Decision Date: 06 February 1894
• Citation: 39 Neb. 201,57 N.W. 1010
• Parties: HAVERLY ET AL. v. ELLIOTT.
• Court: Nebraska Supreme Court

39 Neb. 201

57 N.W. 1010

HAVERLY ET AL.

v.ELLIOTT.

Supreme Court of Nebraska.

Feb. 6, 1894.

Syllabus by the Court.

1. Plaintiff owned and conducted a confectionery store; manufactured and sold ice cream and soda water. She also owned a stock of confections, and a miscellaneous lot of furniture and fixtures, used in her business, such as tables, chairs, shelving, counters, ice-cream freezers, tableware, and soda fountain. One Haverly held a lien against this property for about $250, and brought a suit in equity to foreclose it, and obtained the appointment of a receiver, who took possession of plaintiff's property and place of business, and held them for some days, and then sold the property to pay Haverly's lien. It having been finally decided that the order appointing the receiver ought not to have been granted, the plaintiff sued Haverly and his sureties on the bond given by them to obtain the appointment of such receiver. Held, that the instructions of the district court that the plaintiff's measure of damages was--First, the value of her interest in the property sold by the receiver at the time he took possession of the same; and, second, the actual loss she sustained by the suspension of her business during the time she was prevented from carrying it on by reason of the possession held by the receiver of her property and place of business,--were correct.

2. A motion for a new trial in the language of the statute is sufficient, but no error will be considered in this court which is not specifically assigned as such in the petition in error.

3. Objections to the admission or exclusion of evidence, to be available, should be made at the time such evidence is offered, and a motion, made after the trial closes, to strike out certain evidence, should be overruled.

Error to district court, Douglas county; H. J. Davis, Judge.

Action by Margaret Elliott against David M. Haverly and others on a bond. There was judgment for plaintiff, and defendants bring error. Affirmed.Holmes & Macomber and James H. Macomber, for plaintiffs in error.

Henry D. Estabrook, for defendant in error.

RAGAN, C.

In the month of August, 1885, Margaret J. Elliott was engaged in the city of Omaha in conducting a confectionery store and in the manufacture and sale of ice cream and soda water. She owned a soda fountain, some tables, chairs, shelving, ice-cream freezers, tableware, and other fixtures and furniture necessary to the conduct of such business, and had on hand some confections, fruits, and cream. One Haverly, on the 14th of this month, had a lien against this property for about $250, and brought a suit in equity in the district court of said county against Mrs. Elliott to foreclose this lien. He made application for, and had appointed, a receiver, who took possession of this property of Mrs. Elliott, and also took possession of her place of business, closed the same up, put the place and property in the care of an attendant, and so kept it for some 11 days. He then sold the property to raise the money due Haverly on his lien. By the decree rendered in the case brought by Haverly it was decided that the order appointing a receiver ought not to have been granted. Mrs. Elliott brought this suit for damages against Haverly and the sureties on his bond given to obtain the appointment of said receiver. There was a trial to a jury, and a verdict in favor of Mrs. Elliott for $1,000. The district court overruled a motion for a new trial, rendered judgment on the verdict, and Haverly and his sureties bring the case here on error.

There are three points relied on by plaintiffs in error for a reversal of this judgment: (1) Improper admission of evidence on the trial in behalf of the defendant in error; (2) erroneous instructions given by the court to the jury; (3) that the verdict is not sustained by sufficient evidence, and is contrary to law.

The complaint made by counsel for plaintiffs in error as to the wrongful admission of evidence is thus stated by them in their brief: “Upon the trial to the jury the defendant in error introduced, over the objection of the plaintiffs in error, testimony tending to show the nature and volume of the business, the length of time the business was suspended, and the amount of profit that was made on certain sales. (See record, interrogatories 12, 14, 18, 250, 254, and 268.)” But the only error assigned in the petition in error on the subject of evidence is as follows: “The court erred in overruling the motion to exclude the testimony offered by the defendant, Elliott, at the trial, tending to establish the good will of the business in issue.” The questions which counsel say, in their brief, the court erred in permitting to be answered, are not referred to in their petition in error, and for that reason we cannot review the ruling of the district court in permitting those questions to be answered. Once more we desire to call the attention of the bar of the state to the oft-repeated rulings of this court that, in order for a litigant to obtain a review of an alleged error made by the district court in the admission or rejection of testimony, such alleged error must be specifically alleged in the petition in error filed here. A motion for a new trial in the language of the statute is sufficient, but no error can be considered in this court which is not assigned as an error in the petition in error.

As to the error which it is alleged the court committed in overruling counsel's motion to exclude evidence offered by the defendant, Elliott, tending to establish the good will of the business, there are several things to be said: First. Repeated examinations and readings of all the evidence of the defendant in error fail to disclose that the Elliotts, or either of them, gave any testimony on behalf of the defendant in error as to the value of the good will of Mrs. Elliott's business. It is true that they testified as to the length of time that the place of business was...