Moline, Milburn & Stoddard Company v. Curtis

• Citation: 57 N.W. 161,38 Neb. 520
• Decision Date: 22 December 1893
• Docket Number: 4909
• Parties: MOLINE, MILBURN & STODDARD COMPANY v. H. J. CURTIS ET AL
• Court: Supreme Court of Nebraska

57 N.W. 161

38 Neb. 520

MOLINE, MILBURN & STODDARD COMPANY v. H. J. CURTIS ET AL

No. 4909

Supreme Court of Nebraska

December 22, 1893

ERROR from the district court of Johnson county. Tried below before BROADY, J.

REVERSED.

* If the plaintiff, at the date of issuing an attachment does not own the claim for which he seized the defendant's property, he cannot afterwards, by purchasing such claim, assert it by amendment against the property seized. (Farwell v. Wright, 38 Neb. 445.)

Switzler & McIntosh and L. C. Chapman, for plaintiff in error.

S. P Davidson and Corydon Rood, contra.

NORVAL J. MAXWELL, C. J., dissenting.

OPINION

NORVAL, J.

This was an action brought in the county court by plaintiff in error, aided by attachment, against the defendants in error. Prior to the trial a motion was made and submitted to the county court to vacate the attachment, which was taken under advisement. Some time after judgment was rendered in favor of plaintiff in the main case, the defendants' motion to discharge the attachment was denied by the county court; and to reverse said order defendants prosecuted a petition in error to the district court, where the decision of the county court sustaining the attachment was reversed, and the attachment dissolved. Plaintiff thereupon prosecuted a petition in error to this court.

Three questions are presented for our determination, namely:

1. Where a motion to dissolve an attachment has been submitted to the court and taken under advisement before trial and judgment in the action, can the court, after judgment has been rendered for the plaintiff, pass upon such motion?

2. Did the county court err in permitting plaintiff to amend the original affidavit for attachment?

3. Has a county judge authority to sign and allow a bill of exceptions embodying affidavits used on the hearing of a motion to discharge an attachment?

Plaintiff insists that the order of the county court sustaining the attachment was without authority of law and void, for the reason the same was not made until after final judgment in the action. The statute bearing upon the question, section 235 of the Code, declares that "the defendant may, at any time before judgment, upon reasonable notice to the plaintiff, move to discharge an attachment, as to the whole or a part of the property attached." The most that can be claimed for this provision is that a motion to dissolve an attachment, to be available, must be made before final judgment has been rendered for the plaintiff in the action. Of course, a final judgment in favor of a defendant on the merits terminates the attachment proceedings, and vacates the attachment; but a final judgment in favor of the plaintiff does not have the effect to sustain the attachment in all cases. The only reasonable construction of the section quoted is that the authority of the court to dissolve an attachment is limited to cases where a motion to discharge is filed before judgment. In other words, where such a motion is seasonably made and submitted to the court for its decision thereon, but through inadvertence or otherwise no ruling has been made before final judgment on the merits, the court has jurisdiction to rule upon the motion after such judgment. The question now before us was not raised or decided in Rudolf v. McDonald, 6 Neb. 163. In that case the motion to dissolve the attachment was not made until after final judgment, and it was held to be too late to be of any avail to the party making it. In the case before us, not only was the motion made before judgment, but a hearing thereon was had, and the same taken under advisement. The failure of the court to rule thereon sooner is not chargeable to the defendants, but was the fault of the court alone. Under the circumstances it was the duty of the county judge to pass upon the motion after judgment had been entered for plaintiff in the action.

Was the original affidavit on which the attachment was issued defective, and did the county judge err in permitting plaintiff to amend the same? We answer in the negative. The original affidavit for attachment is as follows:

"STATE OF NEBRASKA, JOHNSON COUNTY. SS.

"The said plaintiff, the Moline, Milburn & Stoddard Company, makes oath that the claim in this action is for a recovery of a judgment for money in the sum of nine hundred and seventy-five dollars and 36/100, and the said S.W. Croy, agent of the Milburn, Moline & Stoddard Company, also makes oath that said claim is just, and that the Moline, Milburn & Stoddard Company ought, as affiant believes, to recover thereon nine hundred and seventy-five dollars and 36/100. He also makes oath that the said Harrison J. Curtis, Henry B. Curtis, and Mary E. Curtis, parties composing the firm of H. J. Curtis & Co., defendants, are about to convert their property, or a part thereof, into money, for the purpose of placing it beyond the reach of their creditors; that said Harrison J. Curtis, Henry B. Curtis, and Mary E. Curtis has property and rights in action which they conceal; that the said Harrison J. Curtis, Henry B. Curtis, and Mary E. Curtis have assigned, removed, and disposed of, and they are about to dispose of, their property, or a part thereof, with intent to defraud their creditors. S.W. CROY,

"Agent for Moline, Milburn & Stoddard Company.

"Subscribed in my presence and sworn to before me this 30th day of October, A. D. 1889.

"JOHN WILSON,

"County Judge."

Although the affidavit in the opening clause, relating to the nature of plaintiff's claim, standing alone, purports to be that of the corporation, but when read in connection with what follows, and construing the paper as a whole, as we must, it sufficiently appears that S.W. Croy makes oath to each averment contained in the affidavit, and that he is plaintiff's agent. A similar affidavit was sustained by this court in Whipple v. Hill, 36 Neb. 720, 55 N.W. 227. (See also Rudolf v. McDonald, 6 Neb. 163; Tessier v. Englehart, 18 Neb. 167, and Jansen v. Mundt, 20 Neb. 320, 30 N.W. 53.)

The county court permitted plaintiff to amend the affidavit by inserting "S. W. Croy, Secretary and Treasurer of" after the word "plaintiff" in the first line. The alleged defect was thereby cured. It is not error to permit an affidavit for attachment to be amended, even after a motion to dissolve has been filed. (Struthers v. McDowell, 5 Neb. 491; Rudolf v. McDonald, supra.)

It appears that the motion to vacate the attachment was heard upon affidavits filed by the plaintiff, and on counter-affidavits submitted by the defendants. The county judge signed a bill of exceptions embodying all these affidavits, and in the district court plaintiff moved to quash the bill, on the ground that there is no authority of law for signing a bill of exceptions in such cases. The motion was overruled, and this ruling is assigned as error.

Before entering upon the consideration of this branch of the case, it should be stated that the cause was originally submitted to the supreme court commissioners for examination and report. Subsequently, an opinion prepared by Commissioner IRVINE, covering every proposition presented by the record, which was concurred in by both the other commissioners, was submitted to the court, and the members thereof being divided in opinion upon one proposition, viz., the jurisdiction of the county judge to sign the bill of exceptions, I will give my views upon the subject.

Commissioner IRVINE, in discussing the question, says: "It is not doubted that an order sustaining an attachment is, at least after judgment in the action, a final order, which the defeated party may have reviewed on error. (Walker v. Morse, 33 Neb. 650, 50 N.W. 1055.) The question is not whether such an order may be reviewed, but whether the evidence used on the hearing of the motion in the county court may be preserved by a bill of exceptions for use in the error proceedings.

"By chapter 20, Compiled Statutes, section 2, it is provided that the Code of Civil Procedure, relative to justices of the peace, shall, where no specific provision is made by that subdivision, apply to the proceedings in all civil actions prosecuted before such county court. This is the same section which confers upon the county court jurisdiction concurrent with the district court in all civil cases not exceeding one thousand dollars, except upon certain specific subjects. By section 11 of the same chapter it is provided that where the amount exceeds the jurisdiction of the justice of the peace motions and demurrers shall be allowed, and the rules of practice concerning pleadings and processes in the district court shall be applicable, as far as may be, to pleadings in the county court. This section is a specific provision changing the general rule established by section 2 only in regard to pleadings and processes. By section 16 orders for arrest and for attachment may issue from the county court, and where the demand exceeds the jurisdiction of a justice, the proceedings upon such orders shall be the same, as near as may be, as in the district court. This section makes the proceedings upon orders of attachment analogous to those of the district court, but has no reference to proceedings in the district court to review such orders. By section 26 it is provided that in civil actions either party may appeal or prosecute a petition in error in the same manner as provided by law in cases tried and determined by justices of the peace. Section 31 provides that the county judge shall keep a docket in which all of his proceedings in civil actions shall be entered, in like manner, as near as may be, as before justices of the peace, and that the provisions of the Code relating to justices' dockets shall, as near as may be, apply to...