Howard v. Stewart

• Decision Date: 11 June 1892
• Citation: 34 Neb. 765,52 N.W. 714
• Parties: HOWARD v. STEWART ET AL., (ENSFIELD ET AL., INTERVENERS.)
• Court: Nebraska Supreme Court

34 Neb. 765

52 N.W. 714

HOWARD

v.STEWART ET AL., (ENSFIELD ET AL., INTERVENERS.)

Supreme Court of Nebraska.

June 11, 1892.

Syllabus by the Court.

1. Upon the face of the record as presented, the case was properly removed into the United States circuit court.

2. In an action where the amount of damages claimed by reason of a wrongful levy and sale of goods by a United States marshal and his deputy exceeds $2,000, exclusive of costs, they may remove the cause into a United States circuit court.

3. To entitle them to do so, however, they must plead justification under the process of that court. A general denial of the facts stated in the petition, where the action is for the wrongful taking and sale of the goods, is not sufficient to show justification.

4. A petition for intervention, which states the facts as to the interest of the marshal and the intervener, may be sufficient, prima facie to show on paper for the purpose of a petition to remove the cause the right of the marshal to levy on and sell the property of the plaintiff.

5. An intervener, so far as the right of removal is concerned, steps into the shoes of the original party. If he could have removed the cause, the intervener may do so. If he could not remove the cause, then the intervener is debarred from such removal.

Error to district court, Kearney county; GASLIN, Judge.

Action by William S. Howard against R. Q. Stewart and Brad D. Slaughter for the conversion of a stock of goods. E. M. Ensfield & Co. intervened as parties defendant. The court refused to proceed further with the case, and made an order removing it to the United States circuit court, and plaintiff brings error. Affirmed.John M. Ragan and J. B. Cessna, for plaintiff in error.

Leese & Stewart, L. C. Burr, L. W. Hague, and St. Clair & McPheely, for defendants in error.

MAXWELL, C. J.

In July, 1889, the plaintiff filed a petition in the district court of Kearney county against the defendants to recover the sum of $5,000 for the wrongful conversion of a stock of goods. The defendants answered by a general denial. In October, 1889, E. M. Ensfield & Co. filed a petition to intervene, as follows: “Comes now E. M. Ensfield & Co., and shows to the court that they recovered a judgment in the circuit court of the United States district of Neb. against Warren D. and A. S. Howard, doing business as Howard Bros., for the sum of $695 and costs in an action pending in said court, wherein E. M. Ensfield & Co. was plaintiff and said Howard Bros. was defendant. That an execution was duly issued upon said judgment, and delivered to Brad D. Slaughter, marshal of said court, and one of the defendants herein. That said execution was duly levied upon a stock of general merchandise and certain notes and book accounts as property of said Howard Bros. by said marshal through his duly-appointed deputy, R. Q. Stewart, defendant herein. That said property was advertised and sold according to law by said marshal and his deputy. Said property so levied upon and sold is the same property for the alleged conversion of which plaintiff herein seeks to recover from defendants herein. That the plaintiff to this action claims to have been owner of said property at the time of said levy and sale, which your petitioner alleges is untrue, and says that said property at the time of said levy and sale was the property of said Howard Bros. That the claim of said W. S. Howard to the ownership of said property is made in pursuance of a conspiracy and confederation between him and said Howard Bros. to hinder, cheat, and defraud the creditors of said Howard Bros., and particularly your petitioners. Your petitioners caused said levy and sale to be made as aforesaid, and have obligated themselves to indemnify and save harmless the said marshal from all damages and liabilities such marshal might incur by reason of the making of such levy and sale. Said Howard Bros. being insolvent, your petitioners have an interest in the controversy in this case adverse to the plaintiff, and as judgment creditor under said execution, and is the real party in interest in the defense of this case. Wherefore your petitioners pray that they may be made parties defendant in this case, and be permitted to defend the same, and that an order be made to that effect, and that they be given a reasonable time in which to plead.” The application was sustained, and Ensfield & Co. given 20 days in which to plead. Within seven days after the order, Ensfield & Co. obtained from the ...