Hobbs v. Hunt

• Decision Date: 18 May 1892
• Citation: 52 N.W. 278,34 Neb. 657
• Parties: HOBBS v. HUNT.
• Court: Nebraska Supreme Court

34 Neb. 657

52 N.W. 278

HOBBS

v.HUNT.

Supreme Court of Nebraska.

May 18, 1892.

Syllabus by the Court.

Affidavits used at the hearing of a motion to dissolve an attachment must be preserved by a bill of exceptions, in order to be available in the supreme court.

Error to district court, Douglas county; CLARKSON, Judge.

Robert S. Hobbs sued Charles G. Hunt and attached his property. On an order dissolving the attachment, plaintiff brings error. Affirmed.Schomp & Corson, for plaintiff in error.

B. G. Burbank, for defendant in error.

NORVAL, J.

Plaintiff brought suit in the district court on an account for goods sold and delivered to the defendant. Plaintiff also filed an affidavit for attachment, alleging as grounds therefor that the defendant has property or rights in action which he conceals, and that the defendant has assigned, removed, or disposed of his property, or a part thereof, with intent to defraud his creditors. The statutory undertaking was given by the plaintiff, and an order of attachment was issued, which was levied upon real and personal property. Subsequently defendant moved the court to dissolve the attachment, for the reason that the grounds of said attachment were false and untrue. The motion was sustained by the court, and the attachment discharged. To reverse said ruling, plaintiff brings error. The transcript prepared for this courtcontains copies of numerous affidavits filed in the court below; a copy of a deed of assignment, purporting to have been made by the defendant prior to the attachment, of all his property, not exempt by law, to John F. Boyd, sheriff, for the benefit of all of the creditors of the assignor; and also a copy of certain portions of the book of original entries kept by the defendant. Whether these papers, or any of them, were used on the hearing of the motion to dissolve the attachment, the record does not disclose. They were not preserved by a bill of exceptions, and therefore they cannot be considered. It has been held in numerous decisions in this state that affidavits, or other papers used as evidence in support of, or in opposition to, any proceeding in the trial court, must be embodied in a bill of exceptions, in order to be available in the supreme court. Ray v. Mason, 6 Neb. 101; Aultman v. Howe, 10 Neb. 10, 4 N. W. Rep. 357;Oliver v. Sheeley, 11 Neb. 521, 9 N. W. Rep. 689;Dorrington v. Minnick, 15 Neb. 397, 19 N. W. Rep. 456;Wagon Co. v. Benedict, 25 Neb. 372. 41 N. W. Rep. 254;...