McDonald v. Bowman
| Decision Date | 17 April 1894 |
| Docket Number | 4858 |
| Citation | 58 N.W. 704,40 Neb. 269 |
| Parties | R. L. MCDONALD ET AL. v. E. R. BOWMAN, SHERIFF |
| Court | Nebraska Supreme Court |
REHEARING of case reported in 35 Neb. 93.
AFFIRMED.
Letton & Hinshaw, for plaintiffs in error.
Hazlett & Le Hane, Charles O. Bates, and Hambel & Heasty, contra.
An opinion was filed in this case January 30, 1892, and is reported in 35 Neb. 93, 52 N.W. 828. Subsequently a rehearing was allowed. The principal facts are stated in the former opinion. There has been attached to the record a showing by affidavits and certificates that the lien of one of the attaching creditors has been finally divested, and further that the property involved did not realize its value as found by the jury. This showing must be disregarded in considering the case. The jurisdiction of this court in error proceedings extends only to reviewing the record made in the district court and affirming, reversing, vacating, or modifying the judgment of that court upon the record there made. Original evidence, by affidavits or otherwise, cannot be received in this court to support or defeat the judgment below.
The judgment of affirmance upon the former hearing was given without examination of the errors assigned, upon the theory that there remained in the hands of the mortgagees, after satisfying the judgments of the attaching creditors, sufficient to satisfy their claims, and that the mortgagees were not therefore prejudiced. Upon a reconsideration of the case we think that the court overlooked the purely legal nature of the action, and overlooked the fact that the judgment was in the alternative, for a return of the property, or, in case a return could not be had, for the value of defendant's possession. If the value of the property mortgaged was grossly disproportionate to the debts secured, this was a fact from which the jury might have found a fraudulent intent in the making of the mortgages; but unless the jury so found, if the mortgages were otherwise valid, the mortgagees were entitled to the security of all the property mortgaged. Upon foreclosure of the mortgages it would be probable that the goods would not realize their full value as found by the jury, and it will not do, therefore, for the court to say that, regardless of the merits of the case and the legal rights of the plaintiffs, the plaintiffs must satisfy the attaching creditors as a condition of retaining the property. This was the effect of the former decision. A review of the errors assigned is, therefore, necessary.
Upon the trial it was stipulated, among other things, that on the 31st of January, 1891, the county judge issued a valid writ of attachment in favor of the Lycoming Rubber Company against Tester; that on that day the sheriff levied the attachment upon the goods in controversy and held the same until taken from him by the writ of replevin in this case; that on February 18, and before judgment in said action, the county court dissolved the attachment; that on the 28th day of February the rubber company filed its petition in error in the district court of Jefferson county, seeking a reversal of the order dissolving the attachment, and at the same time filed a valid supersedeas bond, approved by the clerk of the district court, and at the time of the trial the error proceedings were still pending and undetermined. The plaintiffs objected to the admission of any evidence in regard to the petition in error and supersedeas bond, for the reason that no summons in error had been issued and that Tester had not appeared in the error proceedings. The overruling of this objection is assigned as error.
Sections 236e and 236f of the Code of Civil Procedure provide a method of retaining property taken in attachment pending a review on error of proceedings resulting in the discharge of the attachment. By these sections it is provided that when an order discharging an attachment is made, the court shall fix the number of days, not to exceed twenty, in which a petition in error may be filed. During the period so fixed the officer retains the property. Within that time the party seeking the reversal must file his petition in error and give a supersedeas bond. It is not distinctly stated that upon so doing the order discharging the attachment shall be superseded pending the review, but the act was entitled "An act to provide for the retention of attached property pending a review on error of an order...
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