Norwegian Plow Co. v. Bollman

• Citation: 66 N.W. 292,47 Neb. 186
• Parties: NORWEGIAN PLOW CO. v. BOLLMAN ET AL.
• Decision Date: 18 February 1896
• Court: Nebraska Supreme Court

47 Neb. 186

66 N.W. 292

NORWEGIAN PLOW CO.

v.BOLLMAN ET AL.

Supreme Court of Nebraska.

Feb. 18, 1896.

Syllabus by the Court.

1. A party cannot predicate error upon a ruling which he procured to be made.

2. The transcript of appeal is the exclusive evidence of the proceedings in the trial court.

3. A court of equity will not enjoin a judgment at law, upon the ground of fraud, where it does not appear that such judgment is inequitable, or where it is disclosed that plaintiff has not exercised due diligence in the assertion of his rights.

Appeal from district court, Madison county; Sullivan, Judge.

Action by the Norwegian Plow Company against Reuben Bollman and others. From a judgment of dismissal, plaintiff appeals. Affirmed.H. C. Brome and R. A. Jones, for appellant.

D. A. Holmes and Robertson & Wigton, for appellees.

NORVAL, J.

This was a suit to enjoin the collection of a judgment of the district court of Madison county, rendered in an action at law wherein Reuben Bollman was plaintiff, and H. A. Pasewalk and others were defendants, which judgment was affirmed by this court at the January, 1890, term, the opinion being reported in 29 Neb. 519, 45 N. W. 780. The injunction case was dismissed, and plaintiff appeals.

The order of dismissal is as follows: “The Norwegian Plow Co. v. Reuben Bollman et al. Now, on this 17th day of December, 1892, this cause came on to be heard on the motion of the plaintiff for judgment of dismissal upon the issues presented by the pleadings herein filed, and the court, being fully advised in the premises, sustains said motion, and said cause is dismissed at plaintiff's costs, to all of which rulings and judgment of the court plaintiff at the time excepted,” etc. It will be observed from the foregoing that plaintiff has appealed from an order sustaining his own motion to dismiss the cause. He having expressly invited this decision to be made, if erroneous, it is his own error, and not the error of the court, and he is thereby precluded from assailing the ruling. Insurance Co. v. Maxwell, 38 Neb. 358, 56 N. W. 1028;Weander v. Johnson, 42 Neb. 117, 60 N. W. 353. It may be said that the journal entry is incorrect wherein it is stated that the motion to dismiss was made by the plaintiff; that, in fact, it was defendant's motion. There is nothing in the record to show that such a mistake was made. The motion is not included in the transcript, and the journal entry contains the written approval of the attorneys for the respective parties indorsed thereon, as well as authenticated by the certificate of the clerk of the trial court. It is well settled that the transcript of appeal is the sole and exclusive evidence of the proceedings in the court below. Weander v. Johnson, 42 Neb. 117, 60 N. W. 353;Dryfus v. Moline, 43 Neb. 233, 61 N. W. 599;Davis v. Snyder, 45 Neb. 415, 63 N. W. 789.

The same result is reached upon a ground less technical. Conceding that plaintiff did not ask the order of dismissal to be made, as counsel in their briefs assume to be the case, yet there must be an affirmance upon the merits, as we shall proceed to show. Before doing this, a statement of the issues presented by the pleadings will be necessary to a proper understanding of the case, since the decision was predicated upon them alone.

The petition alleges, in substance, that the defendant Bollman was sheriff of Knox county, and Rothwell was his deputy; the other defendants, Tyrell and Losey, are, respectively, the clerk of the district court and sheriff of Madison county; that the plaintiff recovered certain judgments before a justice of the peace of Knox county against one Fred Fisher, and caused executions to be issued thereon, which were delivered to said Rothwell for collection; that, on the same day, plaintiff caused to be executed and delivered to Rothwell an undertaking signed by H. A. Pasewalk, J. S. McClary, and A. P. Pilger, as sureties, for the purpose of indemnifying the sheriff on account of the levy of said executions upon certain goods and chattels, then in the possession of Fisher, but claimed by Deere, Wells & Co. and others. (A copy of this bond, as set forth in the petition, is set out in the opinion in 29 Neb. 517, 45 N. W. 780, and need not be here given.) The petition further avers that the deputy sheriff levied these executions upon, and sold, certain property then in the possession of Fisher (described in Exhibit A, attached to the petition), and applied the proceeds arising from such sale to the payment of plaintiff's judgments; that, at the same time, Bollman and Rothwell fraudulently and unlawfully, and for the purpose of cheating and defrauding plaintiff, and without his knowledge or consent, or that of the sureties upon the indemnifying bond, took into their possession, and converted to their own use, certain other property claimed by Deere, Wells & Co. (described in Schedule B, attached to the petition); and that no accounting has ever been made to the plaintiff or said sureties for the property so taken and converted by said sheriff and his deputy. It is further alleged that subsequently Deere, Wells & Co. brought an action in the circuit court of the United States for the district of Nebraska, against said Bollman and the sureties on his official bond, for the conversion of all the goods so taken by the officer, and recovered therein a judgment against the defendants for the sum of $3,416.65, damages and costs of suit, for the goods taken at the request, and appropriated to the use and benefit, of the plaintiff herein, as well as for the goods described in said Exhibit B; that subsequently Bollman instituted an action in the district court of Madison county against said McClary, Pilger, and Pasewalk upon said indemnifying bond, for the purpose of compelling the plaintiff herein to pay for the property described in Exhibit B, and for and on account of the said judgment recovered by said Deere, Wells & Co.; that Bollman, in his said action on said bond, for the purpose of cheating and defrauding the Norwegian Plow Company, unlawfully and fraudulently averred that the said judgment of Deere, Wells & Co. was recovered on account and for goods taken by Bollman upon said executions, although in fact said judgment was not obtained for such purpose, as Bollman well knew at the time of bringing his suit, but on account of and for the goods described in Exhibit B, as well as for the goods mentioned and set forth in Exhibit A. The petition further charges that Bollman prosecuted his said action to final judgment, recovering therein, against Pilger, McClary, and Pasewalk, the sum of $3,797.87, for the value of...