Hoke v. Halverstadt

• Court: Nebraska Supreme Court
• Writing for the Court: REESE, J.
• Citation: Hoke v. Halverstadt, 22 Neb. 421, 35 N.W. 204 (Neb. 1887)
• Decision Date: 16 November 1887
• Parties: WILLIAM H. HOKE, E. GRIFFIN, A. M. COFFEE, AND GEORGE W. AKERMAN, PLAINTIFFS IN ERROR, v. D. S. HALVERSTADT, DEFENDANT IN ERROR

35 N.W. 204

22 Neb. 421

WILLIAM H. HOKE, E. GRIFFIN, A. M. COFFEE, AND GEORGE W. AKERMAN, PLAINTIFFS IN ERROR, v. D. S. HALVERSTADT, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 16, 1887

ERROR to the district court for Johnson county. Tried below before BROADY, J.

AFFIRMED.

Cornish & Tibbets, for plaintiff in error, cited: Clarke v. O. & S.W. R. R., 5 Neb. 331. Civil code, Sec. 92.

L. C Chapman and E. W. Metcalfe, for defendant in error, cited: 1 Nash. Pl. and Pr., 142. Turner v. Killian, 12 Neb 580. Burgess v. Everett, 9 Ohio St. 429. Tessier v Reed, Jones & Co., 17 Neb. 105.

OPINION

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 23d day 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 the damages caused thereby to the holder of the mortgage by being deprived of the security for his debt. The answer of plaintiffs in error admitted the execution of the mortgage and alleged that it was fraudulent and void as against creditors, and especially as against the plaintiffs 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 the 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 of the allegations in the petition, except such as are expressly admitted. It is admitted that plaintiff in error, at the time of the seizure and sale, was constable of Todd Creek precinct, in Johnson county, as alleged in the petition, but there is no admission that the other plaintiffs in error were sureties upon his official bond nor that any bond had ever been executed. There was no testimony introduced tending in any way to prove the execution of such bond, or that the other plaintiffs in error, aside from Hoke, were bound to respond for the damages. The verdict of the jury by which the...