Parrott v. McDonald

• Decision Date: 09 June 1904
• Docket Number: 13,550
• Citation: 100 N.W. 132,72 Neb. 97
• Parties: JEROME B. PARROTT v. JOHN W. MCDONALD ET AL
• Court: Nebraska Supreme Court

100 N.W. 132

72 Neb. 97

JEROME B. PARROTT v. JOHN W. MCDONALD ET AL

No. 13,550

Supreme Court of Nebraska

June 9, 1904

ERROR to the district court for Douglas county: JACOB FAWCETT JUDGE. Affirmed.

AFFIRMED.

Lysle I. Abbott and Dan J. Riley, for plaintiff in error.

Byron G. Burbank, contra.

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

OPINION

AMES C.

George W. Ames, formerly a resident of Omaha, became insolvent, and finally left the state somewhat suddenly on a Saturday night. He was indebted to the plaintiff Parrott in a considerable sum of money and was the owner of a large number of city lots of small individual value. Parrott employed an attorney, and in company with him and a deputy sheriff, spent the greater part of Sunday afternoon and evening in the preparation of papers for the beginning of an attachment suit, and in making copies of the writ to be posted on the lots at the time of the levy. In the course of the evening the deputy told Parrott that the law required that the levy should be made in the presence of two residents of the county and the latter procured promises of the attendance of two such persons living in the neighborhood. The writ was procured to be issued shortly after midnight, and the plaintiff and deputy started out in a carriage to go to the lots and make the levy. The attorney was also in the carriage, but did not intend to go, and did not go, the entire distance. One of the witnesses was expected to be found, and was found, at the site of some of the lots, the other resided on the side of the route of travel and was expected to be taken up on the way. At a proper place Parrott proposed to turn and drive along an intersecting street for this purpose, but the deputy told him it was unnecessary to do so and he desisted. Before arriving at the lots, the attorney left the carriage at his home, and did not rejoin the party that night. Levies were attempted to be made on all of the lots, and a copy of the writ was posted on each of them by the deputy in the presence of Parrott and one other person only. On the morning of the same day, which was the 6th of April, the party returned to the court house. Plaintiff did not go to the sheriff's office, but on the same day he saw his attorney and talked with him about the matter and the deputy made an appraisement of the lots, substituting another person in the place of the plaintiff as one of the appraisers, but at the suggestion of whom, if any one, is not known. The statute requires the appraisement to be made by persons witnessing the levy. The writ was not returned into court until the 18th, but it is impossible to infer that the plaintiff and his attorney were not at all times fully cognizant of all the circumstances and that the latter at least, and probably the former also, was fully...