Hewitt v. Commercial Banking Company

• Decision Date: 05 June 1894
• Docket Number: 5618
• Citation: 59 N.W. 693,40 Neb. 820
• Parties: S. S. HEWITT v. COMMERCIAL BANKING COMPANY
• Court: Nebraska Supreme Court

59 N.W. 693

40 Neb. 820

S. S. HEWITT v. COMMERCIAL BANKING COMPANY

No. 5618

Supreme Court of Nebraska

June 5, 1894

ERROR from the district court of Furnas county. Tried below before COCHRAN, J.

AFFIRMED.

Bartlett Crane & Baldrige and McClure & Anderson, for plaintiff in error.

W. S Morlan and G. W. Norris, contra.

OPINION

HARRISON, J.

On the 17th day of September, 1890, the Commercial Banking Company commenced this action of replevin in the district court of Furnas county, to obtain possession of a stock of general merchandise, and its petition then filed, after stating its corporate character and giving a description of the stock, alleged, as showing its ownership and right to possession of the property, that, "On the 3d day of September, 1890, Chester H. Foland, the owner of said goods and chattels, executed and delivered to plaintiff a chattel mortgage on said goods and chattels to secure plaintiff for the sum of $ 3,067.57, which amount was justly and legally due plaintiff from said Chester H. Foland, and which is still unpaid, and by virtue of said chattel mortgage plaintiff took possession of said goods and chattels on the said 3d day of September, 1890, and held possession of the same until the 17th day of September, 1890, when defendant S. S. Hewitt unlawfully and forcibly took possession of the same and still holds the same in his possession. Said chattel mortgage was duly filed for record in the office of the county clerk of Furnas county, Nebraska, on said 3d day of September, 1890." The petition further contained the usual allegations of petitions in actions of replevin. The defendant, who it appears was the sheriff of Furnas county, in answer to this petition admits the existence of the banking company as a corporation; admits that the chattel mortgage was executed and delivered to it by the party on the date, for the sum, and conveying the stock of goods as pleaded in the petition, and traverses separately, or specially denies, the other allegations of the petition, and as a further defense states: "For further and separate defense and answer to the plaintiff's petition defendant alleges that on and prior to said 3d day of September, 1890, the said Chester H. Foland was indebted to divers persons, firms, and corporations in a large amount of money, to-wit, over $ 2,500. Among the said persons, firms, and corporations to whom said Foland was then indebted, and who were and are creditors of the said Foland, are Darrow & Logan, R. L. McDonald & Co., D. M. Steele & Co., Tootle, Hosea & Co., the American Hand Sewed Shoe Company, M. E. Smith & Co., Turner, Frazer & Co., besides other creditors to the defendant unknown. That for the purpose of cheating and defrauding said creditors the said plaintiff in this action caused the said Foland to execute the said chattel mortgage on the 3d day of September, 1890, for said sum of $ 3,067.57, and said defendant charges the fact to be that said mortgage was made with intent on the part of plaintiff and said Foland to hinder, delay, and defraud said creditors of said Chester H. Foland of their lawful rights, debts, and demands, and this defendant alleges the fact to be that said mortgage and execution thereof was not accompanied by an immediate delivery and was not followed by an actual and continued change of possession of the said property mortgaged; that on the said 4th day of September, 1890, judgments were obtained by the American Hand Sewed Shoe Company, the said D. M. Steele & Co., and R. L. McDonald & Co., for the respective amounts due and owing them from the said Chester H. Foland by confession in said suits. Executions were duly issued, and this defendant, as sheriff of Furnas county, executed said executions by taking said property described in the petition herein; and this defendant now holds the said property by virtue of said executions, which are duly, legally, and rightfully executed, and which are the same acts and doings complained of in the plaintiff's petition, and none other or different; that said executions were issued because of the said fraudulent transfer of said property to said plaintiff." The banking company filed a reply to the answer, in which it admits the recovery of the judgments pleaded in the answer and denies each and every other allegation therein contained. There were two trials in the district court before the judge thereof and a jury, the second one of which resulted in a verdict and, after motion for a new trial regularly submitted was overruled, a judgment in favor of the banking company, to reverse which the plaintiff in error prosecuted his petition in error to this court.

There are several assignments of error which complain of the action of the court in sustaining objections to certain interrogatories propounded to witnesses during the progress of the trial, but as these are ignored in the brief filed for plaintiff in error, they will be deemed waived and will not be further noticed.

The sixth assignment of error is as follows: "The court erred in giving paragraphs 4, 6, 7, 9, 10, 11, 12, 13, and 14 of instructions to the jury given by the court on its own motion." We have examined the instructions enumerated in the above paragraph of the petition in error, and several, if not all, of them are fully pertinent to the issues in the case and correctly directed and informed the jury; and having determined this, the assignment quoted will not be further considered, agreeably to the rule announced in Hiatt v. Kinkaid, 40 Neb. 178, 58 N.W. 700, viz.: "An assignment of error as to the giving en masse of certain instructions will be considered no further than to ascertain that any one of such instructions was properly given." (See, also, McDonald v. Bowman, 40 Neb. 269, 58 N.W. 704; Jenkins v. Mitchell, 40 Neb. 664, 59 N.W. 90.)

Assignment No. 7 reads as follows: "The court erred in refusing to give paragraphs 2, 2 1/2, 3, 4, 5, 6, and 7 of instructions asked for by the plaintiff in error." There are several of the instructions of those grouped in this assignment, the...