Johnson v. Steele

• Decision Date: 06 January 1888
• Parties: JOHNSON ET AL. v. STEELE.
• Court: Nebraska Supreme Court

23 Neb. 82

36 N.W. 358

JOHNSON ET AL.

v.STEELE.

Supreme Court of Nebraska.

January 6, 1888.

Syllabus by the Court.

In a proceeding in attachment where the defendant denies the truth of the allegations in the affidavit for attachment, and an inquiry is made thereon by the district court upon affidavits filed by both parties, and in which there is a conflict, a reviewing court will not reverse the decision of the district court upon the facts, unless the decision was clearly wrong. In such case the same rule must be applied as would be, had there been a trial.

Error to district court, Douglas county; ELEAZER WAKELEY, Judge.

Action by Dudley M. Steele against J. H. Johnson & Co., in attachment. Judgment for plaintiff, and defendants bring error.Warren Switzler, for plaintiffs in error.

Stow & Day and Montgomery & Jeffrey, for defendant in error.

REESE, C. J.

This was a proceeding in attachment against plaintiff in error. He appeared in the district court and moved for a vacation of the attachment, upon the ground that the allegations of the affidavit by which the attachment was obtained were untrue. A number of affidavits were presented on his part, as well as upon the part of attaching creditors. It appears from the whole record, that immediately prior to the suing out of the attachment plaintiffs in error were engaged in the grocery business in the city of Omaha, with a stock of goods and other property, of the value of about $3,100; that they were indebted to Sloan, Johnson & Co. in the sum of $1,540.50; and that, for the purpose of securing this indebtedness, they executed a bill of sale to Sloan, Johnson & Co. upon all their property on the twenty-eighth of February, 1887, and turned over to Sloan, Johnson & Co. possession thereof. There is nothing in the record that shows any fraud on the part of Sloan, Johnson & Co., and in fact nothing which would prove such fraud on the part of plaintiffs in error, so far as that transaction alone is concerned, except the statements of plaintiffs in error, which are alleged to have been made immediately after the execution of the bill of sale. These statements are to the effect that they sold out their entire stock and personal property to Sloan, Johnson & Co., one of their creditors, and gave them a bill of sale of the same; that certain of their other creditors had been threatening to crowd them on their accounts by bringing suits for the amounts due, etc., and that for the purpose of putting...