Hoke v. Halverstadt

• Court: Nebraska Supreme Court
• Writing for the Court: REESE
• Citation: Hoke v. Halverstadt, 22 Neb. 421, 35 N.W. 204 (Neb. 1887)
• Decision Date: 16 November 1887
• Parties: HOKE AND OTHERS v. HALVERSTADT.

22 Neb. 421

35 N.W. 204

HOKE AND OTHERS

v.HALVERSTADT.

Supreme Court of Nebraska.

November 16, 1887.

Syllabus by the Court.

Under the provisions of section 429 of the Civil Code, in an action against two or more defendants upon a joint obligation, the evidence being ample as to one, but insufficient as to the other defendants, the verdict and judgment should be against one, and in favor of the others. In such case where the verdict was against all of the defendants, and those against whom there was but insufficient evidence made no motion for a new trial as to themselves alone, and judgment was rendered against all, it will not be disturbed.

Petition examined, and held sufficient when assailed after verdict.

Error to district court, Johnson county; BROADY, Judge.Cornish & Tibbetts, for plaintiffs.

L. C. Chapman and E. W. Metcalfe, for defendant.

REESE, J.

This is a proceeding in error to the district court of Johnson county. The action was against plaintiff in error Hoke, who was a constable, together with the other plaintiffs in error as sureties upon his official bond. The allegations of the petition may be briefly stated to be that on the twenty-third of January, in the year 1885, the plaintiff in error, as such constable, under and by virtue of an order of attachment placed in his hands for execution, levied upon certain personal property as the property of one E. A. Halverstadt; that at the time of the levy defendant in error held a chattel mortgage on the property to secure a debt of $300, of which plaintiff in error had due notice when the levy was made. Plaintiff in error sold the property in pursuance of his levy, and this action is for damages caused thereby to the holder of the mortgage, by being deprived of the security for his debt.

The answer of plaintiff in error admitted the execution of the mortgage, and alleged that it was fraudulent and void as against creditors, and especially as against the plaintiff in the attachment proceedings. It is further alleged that the mortgaged property consisted of a stock of goods in a grocery, confectionery, and restaurant, and that after the execution of the mortgage, the mortgagor, with the consent of defendant in error, who was the mortgagee, sold the goods in the usual course of trade, with the consent and knowledge of defendant in error. The attachment proceedings are set out in full, but as there is no point made as to their legality, they need not be further noticed. We may further remark that there is no proof in the record that defendant in error had any knowledge of the sale of the goods, nor that he had given his consent thereto. These facts are also denied by him in his testimony. There is nothing in the mortgage conferring this right, and the contention that the mortgage was void by reason of such sales, may be disposed of with the remark that the verdict of the jury upon this question must be final, it being supported by sufficient evidence. In addition to the averments contained in the answer, to which we have referred, there is a general denial of each and every...