National Bank of Commerce v. Chamberlain

• Decision Date: 05 October 1904
• Docket Number: 13,608
• Citation: 100 N.W. 943,72 Neb. 469
• Parties: NATIONAL BANK OF COMMERCE, APPELLEE, v. EDITH R. CHAMBERLAIN, APPELLANT
• Court: Nebraska Supreme Court

100 N.W. 943

72 Neb. 469

NATIONAL BANK OF COMMERCE, APPELLEE, v. EDITH R. CHAMBERLAIN, APPELLANT

No. 13,608

Supreme Court of Nebraska

October 5, 1904

APPEAL from the district court for Johnson county: JOHN S. STULL JUDGE. Reversed with directions.

Reversed and remanded, with directions.

Halleck F. Rose, W. B. Comstock, and Ed M. Tracy, for appellant.

S. P Davidson, contra.

OLDHAM C. AMES and LETTON, CC., concur.

OPINION

OLDHAM, C.

On the 2d day of September, 1902, the National Bank of Commerce of Kansas City, Missouri, brought a suit at law against Charles M. Chamberlain on 5 promissory notes in the district court for Johnson county, Nebraska. On the 3d day of September it caused an attachment to issue in aid of its suit at law, and at the same time levied on a large amount of property alleged to have been owned by Charles M. Chamberlain, who had previously absconded and fled from the county and state. Among other property, the attachment was levied upon an irregularly described piece of land containing about 60 acres, on which Edith R. Chamberlain, the wife, and three minor children of Charles M. Chamberlain were residing, and on which they had continuously resided for a long time before the levy of the attachment. William W. Wheatley, as treasurer of Johnson county, also had an attachment levied on all this property in aid of a judgment which he had procured against Charles M. Chamberlain and others, as sureties, on the depository bond of the Chamberlain Banking House. The two causes of action were consolidated by agreement and tried together. The treasurer of the county was defeated on the merits of his attachment, and is only here asking for relief from a portion of the costs taxed against him. The issues on costs between the county treasurer and other parties to the suit will be subsequently determined on a motion to retax costs and need not be further considered. After the levy of the attachment on the property claimed as a homestead, Edith R. Chamberlain presented an application to intervene, in which she represented to the court that the attachments were wrongfully levied upon her homestead; that she is the wife of Charles M. Chamberlain, and that she, with her three minor children, reside upon and occupy the premises as a homestead; that the husband is absent from the county and that she has a right to appear for herself and minor children; that the sheriff of Johnson county has levied upon and holds the homestead (describing it), and threatens to sell said homestead under the levy so made; that on the date of making the levy she informed the sheriff that said premises constituted her homestead, and that she subsequently served written notice on the sheriff that she claimed said property as her homestead; that the action is not based upon any debt secured by mechanics' liens, laborers' liens, or vendors' liens, nor upon any debt secured by a mortgage on the said land; that the premises are incumbered by a mortgage of $ 1,000 and by the taxes for the year 1902, and that their total value, exclusive of incumbrances, does not exceed $ 2,000; that she and her husband are residents and citizens of the state of Nebraska and Johnson county; that the levy of the attachment puts her title to her homestead in question and casts a cloud thereon. The cross-petition concludes with the following prayer:

"Wherefore, intervener prays that the said levy be declared not a lien upon the said premises; that the cloud thereby cast be removed from the said premises; that the plaintiff be perpetually enjoined from asserting or claiming any lien upon the said premises by virtue of judgment, or the said order of attachment, or the levy thereunder; that William H. Cummings, sheriff of Johnson county, Nebraska, be perpetually enjoined from selling the said premises by reason of the said order of attachment or the levy thereunder; that title to said premises may be quieted in and declared intervener's homestead, and for such other and further relief as may be just and equitable."

The bank filed an answer to this cross-petition, in which it alleged, in substance, that the amount of the property claimed as a homestead was more than the head of a family is entitled to under the law, and it is worth more than $ 3,000 that the indebtedness upon which...