Higgins v. J. I. Case Threshing Machine Co.

• Decision Date: 07 January 1914
• Docket Number: 17,477
• Parties: JONATHAN HIGGINS, APPELLEE, v. J. I. CASE THRESHING MACHINE COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

144 N.W. 1037

95 Neb. 3

JONATHAN HIGGINS, APPELLEE, v. J. I. CASE THRESHING MACHINE COMPANY ET AL., APPELLANTS

No. 17,477

Supreme Court of Nebraska

January 7, 1914

APPEAL from the district court for Furnas county: ROBERT C. ORR JUDGE. Affirmed on condition.

AFFIRMED ON CONDITION.

O. A Abbott and R. J. Harper, for appellants.

Lambe & Butler and W. S. Morlan, contra.

REESE C. J. BARNES, ROSE and SEDGWICK, JJ., not sitting.

OPINION

REESE, C. J.

This action was commenced in the district court for Furnas county upon the provisions of an appeal or supersedeas bond executed by the J. I. Case Threshing Machine Company with the National Surety Company as surety. The history of the case dates from the year 1878, when defendant and appellant herein obtained a judgment against the plaintiff herein and others for the sum of $ 799.19 in the district court for Nemaha county. A transcript of the judgment was filed in the office of the clerk of the district court for Custer county in 1889, and proceedings were there instituted for a revivor of the judgment, and an order of revivor was entered. This plaintiff had become a resident of Furnas county. A transcript was taken from Custer county and filed in Furnas county, where a proceeding in garnishment was commenced against him, and debts to the amount of about $ 19,050 were seized by the garnishee process. At a subsequent session of the district court the garnishment was set aside and vacated. The threshing machine company appealed to the supreme court and executed a supersedeas bond in the sum of $ 5,200 in favor of this plaintiff, and thus held the garnishment good until the final decision of the supreme court was rendered, which affirmed the judgment of the district court. The decision was rendered October 22, 1909, and is reported in Case Threshing Machine Co. v. Edmisten, 85 Neb. 272, 122 N.W. 891. By the appeal the whole garnishment was held in force from the 27th day of June, 1908, until the 3d day of December, 1909, when finally vacated by the mandate from the supreme court. The allegations of the petition are, in substance, that the garnishment was wrongful and malicious; that the appeal and supersedeas bond by which so much of plaintiff's property was tied up was oppressive and deprived plaintiff of all interest and income therefrom for the time specified, to wit, one year, five months and seven days. The bond bound defendants to "pay all costs and damages that may accrue to the said Jonathan Higgins on account of appealing from the said order of the said court discharging said garnishees, and shall hold the said Jonathan Higgins harmless on account of said appeal." The suit is for interest on the funds which were tied up by the appeal, they being largely in the banks on deposit without interest, and that plaintiff was driven to borrow money from his other resources and credit and pay interest thereon. The damages alleged were $ 2,666, including $ 500 for attorneys' fees, for which judgment was demanded.

The defendants answered separately, the issues presented being substantially the same, admitting the legal proceedings set out in the petition, but denying that the garnishment or appeal was wilful or malicious; alleging the validity of the judgment against plaintiff, the validity of the revivor by the district court for Custer county; admitting the issuance of the garnishee summons, that the same was quashed, the appeal, and execution of the bond, that final judgment in the supreme court was adverse to defendant; denying all allegations as to the amount of money impounded by the garnishment and appeal proceedings; alleging that it was the duty of plaintiff to adopt all reasonable precautions to reduce and avert any loss or damage he or defendants might sustain, by applying to the district court for leave to have the garnishees deposit with the clerk such sum as might be necessary to satisfy the judgment and costs, including the probable costs in the supreme court in case the judgment of the district court should be reversed, and order the residue paid over to plaintiff by the garnishees so that all parties to the proceedings might be protected, but, instead of so doing, plaintiff neglected to disclose to defendants the amount claimed by him to have been in the custody of the garnishees, but carefully concealed the same, whereby plaintiff was estopped to claim or recover interest on the same.

Plaintiff replied by a general denial of the new matter set up in the answer.

A jury trial was had, which resulted in a verdict in favor of plaintiff, finding due him as interest on the funds impounded from the 27th day of June, 1908, to the 3d day of December, 1909, the sum of $ 401.80, and for expenses and attorneys' fees incurred the sum of $ 325, and assessing the total at the sum of $ 726.80, with interest at the rate of seven per cent. from the 3d day of December, 1909, upon the amount so found due, aggregating the sum of $ 799.71. A motion for a new trial was filed and overruled, and judgment rendered on the verdict. Defendants appeal.

On the trial defendants asked and the court gave the following instruction: "You are instructed that, while the defendants admit that some amount is due for the impounding of the money and property of the plaintiff under the garnishee proceedings, they contend that nothing is due for attorneys' fees claimed, and that the amount claimed is excessive." In the brief of defendants it is said that "defendants do not contend that the damages due the plaintiff on account of interest on the moneys impounded from June 27, 1908, to December 3, 1909, to wit, $ 401.80, is excessive," but that "no interest should have been allowed on the amount of the damages found...