McDonald v. Bowman
| Decision Date | 17 April 1894 |
| Citation | 58 N.W. 704,40 Neb. 269 |
| Parties | MCDONALD ET AL. v. BOWMAN, SHERIFF. |
| Court | Nebraska Supreme Court |
MCDONALD ET AL.
v.
BOWMAN, SHERIFF.
Supreme Court of Nebraska.
April 17, 1894.
1. The jurisdiction of this court in error proceedings extends only to the affirmance or the reversal, vacating or modifying of a judgment, according to the record made in the district court. Original evidence, by affidavits or otherwise, cannot be here received to alter, contradict, or avoid that record.
2. In an action of replevin by a mortgagee of chattels against a sheriff who has taken them on attachment against the mortgagor, the defendant cannot be permitted to recover merely upon the finding of the jury that the value of the mortgaged chattels was sufficient to satisfy both the mortgage and the attachment, regardless of the bona fides of the mortgage. If the mortgage was good, the mortgagee was entitled
[58 N.W. 705]
to the full security afforded him thereby, and he is entitled to have the proceedings adjudging it void reviewed in this court. McDonald v. Bowman, 52 N. W. 828, 35 Neb. 93, in this respect overruled.
3. Where an order is made discharging an attachment, the filing of a petition in error, and the filing and approval of a supersedeas bond, within the time fixed by the court, not to exceed 20 days, operates to continue the lien of the attachment in force pending error proceedings. The issuance of a summons in error within that time is not necessary for that purpose.
4. Declarations of a mortgagor of chattels made after the execution of the mortgage are admissible in an action between the mortgagee and creditors of the mortgagor for the purpose of establishing a fraudulent intent on the part of the mortgagor. Sloan v. Coburn, 42 N. W. 726, 26 Neb. 607, followed.
5. If such declarations are made while the mortgagor remains in possession of the property, they are admissible as part of the res gestae. Campbell v. Holland, 35 N. W. 871, 22 Neb. 587;White v. Woodruff, 41 N. W. 785, 25 Neb. 797;Cuningham v. Fuller, 52 N. W. 836, 35 Neb. 58, followed.
6. An assignment of error as to the giving en masse of certain instructions will be considered no further than to ascertain that any one of the instructions was properly given. Hiatt v. Kinkaid (decided at the present term) 58 N. W. 700, followed.
7. In an action by several plaintiffs where there was a verdict against all, a motion for a new trial made by them jointly must be overruled if the verdict was correct against one of them. Scott v. Chope, 49 N. W. 940, 33 Neb. 41, followed.
On rehearing. Affirmed.
For former report, see 35 Neb. 93, 52 N. W. 828.
IRVINE, C.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 the 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...
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