Kinsella v. Sharp

• Decision Date: 18 March 1896
• Docket Number: 6307
• Citation: 66 N.W. 634,47 Neb. 664
• Parties: WILLIAM KINSELLA v. J. C. SHARP, ADMINISTRATOR
• Court: Nebraska Supreme Court

66 N.W. 634

47 Neb. 664

WILLIAM KINSELLA v. J. C. SHARP, ADMINISTRATOR

No. 6307

Supreme Court of Nebraska

March 18, 1896

ERROR from the district court of Douglas county. Tried below before SCOTT, J.

REVERSED AND REMANDED.

E. C Page, for plaintiff in error.

References Cooper v. Reynolds, 10 Wall. [U.S.] 308; Pennoyer v. Neff, 95 U.S. 714; Sherman v Hogland, 54 Ind. 578; Albertoli v. Branham, 80 Cal. 631; Wake v. Griffin, 9 Neb. 47; Ahlman v. Meyer, 19 Neb. 66; Dunbier v. Day, 12 Neb. 596.

Joel W. West and Hall & McCulloch, contra.

OPINION

RAGAN, C. J.

In July, 1890, one Herman Deiss brought an action in the district court of Douglas county against the Western Dry House & Construction Company, and caused an attachment to be issued and levied upon certain personal property as the property of the construction company. Subsequently, William Kinsella brought this action in replevin for the attached property against the sheriff of Douglas county, but failing to give the bond required by statute, the property was returned to the sheriff and by him disposed of to satisfy the judgment rendered in the attachment suit of Deiss. Kinsella's action proceeded against the sheriff as one for damages. The sheriff died pending the action and it was revived against Sharp, his administrator, who had a verdict and judgment, to reverse which Kinsella prosecutes to this court a petition in error.

The first assignment of error argued is that the verdict is not supported by sufficient evidence. After as patient and careful an examination of the record as we are capable of making we have reached the conclusion that this assignment of error must be sustained. There is absolutely no evidence in the record that will support this verdict. One point insisted on before the jury by defendant in error, and submitted to them, was that Kinsella was not the real party in interest; and counsel for the defendant in error now insist that the general finding of the jury includes a finding that Kinsella was not the real party in interest, and that such finding is sustained by sufficient evidence. If the jury reached the conclusion it did by finding that Kinsella was not the real party in interest, the verdict still lacks evidence to support it. The undisputed evidence in this record is that at the time Deiss attached the property in controversy, and long prior to that time, one George Hinchliff was the owner of and in the...