Oberfelder v. Kavanaugh

• Decision Date: 29 April 1890
• Citation: 45 N.W. 471,29 Neb. 427
• Parties: OBERFELDER ET AL. v. KAVANAUGH.
• Court: Nebraska Supreme Court

29 Neb. 427

45 N.W. 471

OBERFELDER ET AL.

v.KAVANAUGH.

Supreme Court of Nebraska.

April 29, 1890.

Syllabus by the Court.

1. The certificate of the trial judge attached to a bill of exceptions, to the effect that it contains all the evidence used on the trial, will not be taken as conclusive, where it appears on the face of the bill that material evidence has been omitted. Railroad Co. v. Hayes, 15 Neb. 224, 18 N. W. Rep. 51.

2. In this state a married woman may own property and carry on trade or business on her sole and separate account, and there is no presumption of law that personal property in the possession of the wife while living with her husband belongs to the husband.

3. A husband and wife were in charge of a millinery store in the city of C. The plaintiffs sold goods on credit to the wife, on the representations of the husband that she was the owner of the bussiness. L., S. & Co. and R., T., W. & Co., not knowing of said representations, or that the wife claimed to own the business, sold on time goods to the husband which went into the store. Afterwards the husband absconded, and the wife gave the plaintiffs a chattel mortgage on the stock to secure the balance of their claim, and the mortgagees took possession thereunder. L., S. & Co. and R., T., W. & Co. shortly afterwards attached the goods as the property of the husband. Held, in an action by the mortgagees against the sheriff for conversion, that the representations of the husband made to the plaintiffs do not estop the officer from showing that the husband was the owner of the property when the mortgage was given.

4. The taxation of costs as terms for filing amended pleadings rests in the discretion of the trial court.

Error to district court, Platte county; POST, Judge.W. A. & S. S. McAllister and Sullivan & Reeder, for plaintiffs in error.

Geo. G. Bowman, and John M. MacFarland, for defendant in error.

NORVAL, J.

This case, which was formerly before this court, and reported in 21 Neb. 483, 32 N. W. Rep. 295, was sent back for a new trial, resulted in a verdict for the defendant, and comes here again on error. It will not be necessary to do more than refer generally to the nature of the controversy. The suit was for the conversion of a stock of milinery goods, notions, etc. The plaintiffs in error claim the goods by virtue of a chattel mortgage given to them by Mrs. B. F. Stump. The defendant in error took the goods from the plaintiffs under two writs of attachment placed in his hands as sheriff of Platte county,--one in favor of Lederer, Strause & Co., and the other in favor of Roll, Thayer, Williams & Co., and both against B. F. Stump. The defendant insists that the goods at the time of the levying of the attachments were owned by Mr. Stump. The plaintiffs also contend that the creditors of B. F. Stump are estopped to claim that the goods in dispute belonged to Mr. Stump, because it is alleged that, months before the execution of the chattel mortgage, he represented to the plaintiffs that his wife was the owner of the business, whereby they were induced to and did sell her goods upon credit. There is evidence in the record tending to show that the plaintiffs, from time to time prior to the execution of the chattel mortgage, sold Mrs. Stump large quantities of goods, extending her credit therefor; that both husband and wife conducted the business from its inception, and that the latter was the owner thereof. The husband having absconded, the plaintiffs succeeded in obtaining from the wife a mortgage on the stock for the amount of their claim. A few days later the attachments were levied. There is likewise evidence to the effect that the attaching creditors sold to the husband on credit the larger part of the goods covered by the mortgages, and that the husband, and not the wife, was the owner of the property in dispute.

On the question of ownership the evidenceis very conflicting; but, as the record discloses that only part of the testimony that was submitted to the jury is before us, we are unable to determine whether or not the verdict is clearly against the weight of the evidence. It appears from page 30 of the bill of exceptions that a certain book in the hand writing of Mr....