Jansen & Co. v. Mundt

• Citation: 30 N.W. 53,20 Neb. 320
• Parties: JANSEN & CO., PLAINTIFFS IN ERROR, v. HERMAN MUNDT, DEFENDANT IN ERROR
• Decision Date: 04 November 1886
• Court: Supreme Court of Nebraska

30 N.W. 53

20 Neb. 320

JANSEN & CO., PLAINTIFFS IN ERROR, v. HERMAN MUNDT, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 4, 1886

ERROR to the district court for Seward county. Heard below before NORVAL, J.

REVERSED AND REMANDED.

Hamilton & Trevitt, for plaintiff in error.

No appearance for defendant in error.

OPINION

MAXWELL CH. J.

The plaintiffs brought an action against the defendant before a justice of the peace of Seward county, their cause of action being stated as follows: "Plaintiff complains of defendant, and for cause of action states to the court that they are wholesale dealers in furniture, and that their place of business is Lincoln, Nebraska; that defendant is a retail dealer in furniture, residing and doing business in the village of Utica, Nebraska; that plaintiffs, at the request and on the order of the defendant, sold and delivered to him the said defendant, goods and merchandise to the value of $ 200, and that the said amount is now due from the defendant to these plaintiffs, and no part of the same has been paid. The plaintiff therefore asks for judgment against the defendant for $ 200 and costs of suit. The plaintiffs further state that the defendant is about to and has commenced to dispose of his property with intent to defraud his creditors. The plaintiffs therefore ask that a writ of attachment be issued against the defendant's land and tenements, goods and chattels, rights and credits.

"(Signed) JANSEN & CO.

"By JOHN DAVIES, their Attorney."

At the same time plaintiffs filed the following affidavit of attachment:

"The State of Nebraska,

"Seward County.

"John Davies, being first duly sworn, deposes and says that he is the authorized attorney of the plaintiff in the above entitled action. That he has commenced an action before H. M. Wright, a justice of the peace in and for E precinct, Seward county, Nebraska, to recover the sum of $ 200 now due and payable to the plaintiffs from the defendant, upon an account for goods sold and delivered to the defendant by plaintiffs at defendant's request and upon his order. The affiants say that they believe that the said claim is just, that the plaintiff ought, as he believes, to recover thereon the sum of $ 200, and that the defendant is about to dispose of his property with intent to defraud his creditors.

"JOHN DAVIES.

"Subscribed, etc."

Plaintiffs filed bond at the same time, as follows:

"Whereas, Jansen & Co. have commenced an action before H. M. Wright, a justice of the peace in and for E precinct, Seward county, Nebraska, against Herman Mundt, to recover the sum of $ 200, and have filed the necessary affidavit to obtain an order of attachment against him; now, therefore, we, T. E. Stanard and J. J. Brandt, do undertake to the said Herman Mundt, defendant, in the penal sum of $ 400, that the plaintiffs shall pay the defendant all damages, not exceeding the above amount, that he may sustain by reason of the attachment in the action, if the order therefor be wrongfully obtained.

"(Signed)

T. E. STANARD,

"T. J. BRANDT."

That the surety of said bond was duly approved, June 15th, 1885, order of attachment and summons issued, and duly served, as evidenced by officer's return.

That on the 17th day of June, 1885, the following motion was filed:

"Jansen & Co., vs. "Herman Mundt.

"Now comes the said defendant, Herman Mundt, by his attorney, for the purpose of this motion only, and moves the court to dismiss the aforesaid action for want of jurisdiction, and states the following reasons therefor:

"1.--For want of proper parties plaintiff.

"2.--Because the facts stated in said affidavit on which said attachment was issued are not true.

"3.--Because the undertaking filed by John Davies does not purport, nor in fact recite any parties plaintiff.

"4.--Because said affidavit filed by said John Davies in said action has no plaintiff recited therein.

"(Signed)

HERMAN MUNDT,

"By J. S. Bennett, his Attorney."

On the 18th day of June, 1885, the foregoing motion was argued and the following judgment entered:

"The court finds, from the evidence in the case, that the title of the cause was not explicit enough in stating the full name of the plaintiff.

"The court further finds that it does not appear that the company is formed to carry on some trade or to hold some species of property in this state, or is not incorporated.

"The motion is therefore sustained, and it is ordered that the attachment in this action be discharged, and the officer ordered to restore to the defendant the property taken under the attachment. To which the plaintiff excepts. It is therefore by me considered this 18th day of June, 1885, that the case be dismissed and the plaintiff pay the costs herein, taxed at $ 11.85."

The case was taken on error to the district court, where the judgment of the justice was affirmed.

Sec. 24 of the code provides that "Any company or association of persons formed for the purpose of carrying on any trade or business, or for the purpose of holding any species of property in this state, and not incorporated, may sue and be sued by such...