Kyd v. Exchange Bank of Cortland

• Decision Date: 03 November 1898
• Docket Number: 8347
• Citation: 76 N.W. 1058,56 Neb. 557
• Parties: ROBERT KYD v. EXCHANGE BANK OF CORTLAND
• Court: Nebraska Supreme Court

76 N.W. 1058

56 Neb. 557

ROBERT KYD v. EXCHANGE BANK OF CORTLAND

No. 8347

Supreme Court of Nebraska

November 3, 1898

ERROR from the district court of Lancaster county. Tried below before HALL, J. Reversed.

REVERSED AND REMANDED.

C. C Flansburg, for plaintiff in error.

George E. Hibner and Davis, Hibner & Whitmore, contra.

OPINION

IRVINE, C.

This action arises largely out of the same state of facts as the Royal Trust Co. v. Exchange Bank of Cortland, 55 Neb. 663, 76 N.W. 425. The Royal Trust Company secured a judgment against the Exchange Bank in the county court of Lancaster county. An effort was made to vacate the judgment under section 1001 of the Code, but that effort failed for want of service of the conditional order. A transcript of the judgment was filed in Gage county, and an execution issued thereon was delivered to Kyd, who was then sheriff of Gage county. He proceeded to Cortland and levied the execution on the cash tray of the bank. Instant communications resulted between the bank and its attorneys in Lincoln. The attorneys took steps for the purpose of prosecuting error proceedings in the district court of Lancaster county, and superseding the judgment. Some arrangement was entered into whereby Kyd took or retained sufficient money to satisfy the judgment and released the rest. The bank asserts that he merely retained that much under an agreement to refund it in case within a few days the bank could assure him that it had effected a supersedeas. Kyd asserts that it was a voluntary satisfaction of the execution. An attempt was made to prosecute error proceedings, and the district court of Lancaster county reversed the judgment of the county court. From the order of reversal error was prosecuted to this court, where it was held that the reversal was erroneous and the error proceedings were dismissed. (Royal Trust Co. v. Exchange Bank of Cortland, supra.) This last step does not appear in the record, but all the facts leading to our judgment in the main case appear in this record, and would lead to the same conclusion if necessary to a decision. After the district court of Lancaster county reversed the county court judgment the Exchange Bank brought suit in the district court of Lancaster county against Kyd, the sureties on his official bond, and Mr. Flansburg, the attorney of the Royal Trust Company, to recover the money seized. To the petition Kyd filed a general demurrer. This demurrer was sustained for the reason, stated in the order, that the action was one within the second subdivision of section 54 of the Code of Civil Procedure, to-wit, that it was an action against a public officer for an act done by him in virtue of or under color of his office, and for that reason must be brought in the county where some part thereof arose. The original petition disclosed that fact, and also disclosed that all of Kyd's acts were performed in Gage county by virtue of or under color of the writ issued out of the district court of that county. After the demurrer was sustained the bank amended its petition. This time it proceeded against Kyd alone, and charged him for money had and received under a special contract. Kyd answered in several counts. One of them set up that the matters complained of arose from acts performed by Kyd by virtue of his office, and that the cause of action arose entirely in Gage county. The reply expressly admitted that the cause of action arose in Gage county, and, replying to other defenses, there were admissions which showed that the money had been delivered by the bank to Kyd as sheriff, because of the execution. When the case came on for trial Kyd objected to the introduction of any evidence, for the reason that upon the pleadings plain...