Lewis v. Mills

• Decision Date: 09 April 1896
• Docket Number: 6413
• Citation: 66 N.W. 817,47 Neb. 910
• Parties: FRANK LEWIS v. W. W. MILLS ET AL
• Court: Nebraska Supreme Court

66 N.W. 817

47 Neb. 910

FRANK LEWIS v. W. W. MILLS ET AL

No. 6413

Supreme Court of Nebraska

April 9, 1896

ERROR from the district court of Madison county. Tried below before ALLEN, J.

REVERSED AND REMANDED.

Wigton & Whitham, for plaintiff in error.

References City of Lowell v. Parker, 10 Met. [Mass.] 309; Turner v. Killian, 12 Neb. 580; Lammon v Feusier, 111 U.S. 17; Thomas v. Markman, 43 Neb. 823; People v. Mersereau, 42 N.W. 153 [Mich.]; Dennie v. Smith, 129 Mass. 143; Tracy v. Goodwin, 5 Allen [Mass.] 409.

Robinson & Reed, contra.

References Kane v. Union P. R. Co., 5 Neb. 107; Fox v. Abbott, 12 Neb. 330; Lucas v. The Governor, 6 Ala. 828; Governor v. Shelby, 2 Blackf. [Ind.] 28; White v. State, 1 Blackf. [Ind.] 558; Pico v. Webster, 14 Cal. 202; Carmichael v. The Governor, 3 How. [Miss.] 236; Bitting v. Moore, 53 Iowa 593.

OPINION

RAGAN, C. J.

The facts in this case are as follows: A judgment was recovered before a justice of the peace in Madison county against one Van Buren Lewis. Execution was issued on the judgment and delivered to one W. W. Mills, a constable of said county. Mills thereupon levied the execution upon certain personal property in the possession of one Frank Lewis, who held the possession of said property and claimed a lien upon it by virtue of a chattel mortgage executed to him by Van Buren Lewis. Mills sold the property to satisfy the execution. Frank Lewis subsequently brought an action in replevin in the district court of Madison county for this property against the constable and a man named Sesler, and in this action Mills was not named or sued as constable. The action proceeded as one for damages, and Lewis recovered a judgment against the constable and Sesler for the value of the property. Execution was issued on this judgment and returned wholly unsatisfied, and thereupon Frank Lewis brought this suit in the district court of Madison county against Mills, the constable, and the sureties on his official bond to recover the amount of the judgment and costs which he, Frank Lewis, had recovered against Mills and Sesler. Only the sureties of the constable filed answers to the action. Their answers in effect admitted that Mills was a duly appointed or elected constable; that he as principal and they as sureties duly executed said bond; that the property which he seized and sold under execution against Van Buren Lewis was the identical property for which Lewis subsequently recovered a judgment against the constable and Sesler. The sureties further pleaded as a defense to the action that the judgment of Lewis against Mills and Sesler was procured by fraud and collusion between Frank Lewis and the constable that the property seized and sold by the constable was in fact and in truth the property of Van Buren Lewis and known by Mills and Frank Lewis to be his property; that the mortgage held on such property by Frank Lewis was made by Van Buren Lewis to hinder, delay and defraud his creditors, to the knowledge of Frank Lewis and the constable, and that by conspiracy and collusion between Frank Lewis and Sesler and Mills the latter two neglected and refused to defend the action of replevin brought by Frank Lewis. When the case at bar came on for trial to a jury, Lewis, to maintain the issues on his part, offered in evidence the record of the judgment which he had obtained in the district court against Mills and Sesler. To the introduction in evidence of this record the sureties on the bond objected, the objection was sustained, and the offered evidence...