Moore v. Fedawa

• Decision Date: 08 December 1882
• Citation: 14 N.W. 170,13 Neb. 379
• Parties: R. E. MOORE AND JOHN MICHAELS, PLAINTIFFS, AND CHARLES MICHAELS, APPELLEE, v. J. A. FEDEWA, IMPLEADED WITH OTHERS, APPELLANT
• Court: Nebraska Supreme Court

14 N.W. 170

13 Neb. 379

R. E. MOORE AND JOHN MICHAELS, PLAINTIFFS, AND CHARLES MICHAELS, APPELLEE, v. J. A. FEDEWA, IMPLEADED WITH OTHERS, APPELLANT

Supreme Court of Nebraska

December 8, 1882

APPEAL from Lancaster county. Tried below before POUND, J.

AFFIRMED.

James E. Philpott, for appellant.

L. C Burr and J. R. Webster, for appellee.

OPINION

MAXWELL, J.

The principal question involved in this case is the priority of attachment liens. It appears from the record that in the year 1876 the defendant Weichbrodt executed a note for the sum of $ 100 to one Thompson, and to secure the payment of the same made a trust deed to Moore upon certain real estate in Lancaster county. The note was afterwards assigned to John Michaels. In May, 1879, an action was brought in the district court of Lancaster county to foreclose the trust deed, and J A. Fedewa was made defendant. He filed an answer setting up an interest in the real estate in question by virtue of an attachment levied thereon in an action in which he was plaintiff and Weichbrodt was defendant. The attachment was levied on the 9th day of July, 1878, and judgment was rendered in his favor on the 26th day of October of that year. Charles Michaels, by leave of court, filed an answer in which he states substantially that on the 29th day of June, 1878, he caused an attachment to be levied upon the real estate in controversy, in an action pending in the district court of Lancaster county, wherein he was plaintiff and Weichbrodt was defendant, and that on the 28th day of October, 1878, judgment was rendered in said action against Weichbrodt and in his favor for the sum of $ 279.89 debt, and $ 107 costs, and the attached premises were ordered to be sold. That in November of that year the premises were sold under the attachment to Charles Michaels for the sum of $ 427. The sale was thereafter confirmed, and a deed made to the purchaser. He then intervened in the action of foreclosure. The court below found that Charles Michaels was the owner of the equity of redemption, and that Fedewa had no lien or interest in the premises. Fedewa brings the cause into this court by appeal.

The only question for consideration is the priority of liens of the attachment.

Sec. 212 of the code provides that "an order of attachment binds the property attached from the time of service." This being so, there is no doubt that Michaels' attachment was prior in point of time to that of Fedewa, and is therefore the prior lien, and is to be satisfied before that of Fedewa. The costs in the case of Michaels v. Weichbrodt seem to be excessive, and we cannot perceive any necessity for incurring so large an amount; and the right of Michaels to charge the same upon the land attached might be doubtful, if the question was raised; but it is not. It appears also, that Fedewa caused an execution issued on his judgment to be levied upon the surplus remaining after the satisfaction of Michaels' judgment, and he received $ 62.52 thereon.

The attorney for Fedewa contends that the order of sale under which Michaels obtained title "is void on its face, for its style is 'The People of the State of Nebraska.'"

The order is in the following form:

"The State of Nebraska, Lancaster county.

"The people of the State of Nebraska to Joseph Hoagland, sheriff, etc."

A writ is defined to be "a mandatory precept issued by the authority and in the name of the sovereign or the state, for the purpose of compelling the defendant to do something therein mentioned. It is issued by a court or other competent jurisdiction, and is returnable to...