Paxton v. Moravek

• Decision Date: 27 January 1891
• Citation: 47 N.W. 919,31 Neb. 305
• Parties: PAXTON ET AL. v. MORAVEK.
• Court: Nebraska Supreme Court

31 Neb. 305

47 N.W. 919

PAXTON ET AL.

v.MORAVEK.

Supreme Court of Nebraska.

Jan. 27, 1891.

Syllabus by the Court.

Where a sheriff attaches property found in the possession of a stranger to the suit, claiming title, in an action of replevin therefor by such stranger the officer, in order to justify the seizure, must not only prove that the attachment defendant was indebted to the attachment plaintiff, but that the attachment was regularly issued. Oberfelder v. Kavanaugh, 21 Neb. 483, 32 N. W. Rep. 295;Williams v. Eikenberry, 25 Neb. 721, 41 N. W. Rep. 770.

Error to district court, Box Butte county; KINKAID, Judge.Charles T. Jenkins, for plaintiffs in error.

B. F. Gilman and Smith P. Tuttle, for defendant in error.

NORVAL, J.

The defendant in error commenced this action against Fred A. Shonquist, sheriff of Box Butte county, to recover the possesssion of a stock of general merchandise. Afterwards, at the request of the plaintiffs in error, they were substituted as defendants in the place of the sheriff. A trial was had to the court, who found the issues in favor of the defendant in error, and assessed his damages for the unlawful detention at one cent. The defendant in error claims the property by virtue of a chattel mortgage given by Mary H. Barnes. The plaintiffs in error caused the goods to be attached as the property of Charles M. Barnes. The bona fides of the mortgage is assailed. The following are the undisputed facts: Charles M. Barnes on and prior to the 25th day of February, 1889, was keeping a country store, and owned the goods in controversy. On that date he separated from his wife, and immediately left the country. At the time of the separation they settled their property rights, he conveying to her by bill of sale the store building and stock of goods, worth $1,800 to $2,000; she paying him $500 in cash, and relinquishing her interest in certain lands. She also agreed to pay Moravek $600 which Barnes had borrowed from him in January. Moravek loaned Mrs. Barnes the $500 she paid her husband. Mrs. Barnes immediately took possession of the store and goods, and on March 1st gave Moravek a chattel mortgage for the sum of $1,500 to cover the $1,100 indebtedness to him, and the further sum of $400 he was to advance to her in a few days to increase the stock. The mortgage was duly filed for record the day of its date. A few days later a part of the goods were taken by the sheriff on a writ of attachment issued against Barnes, at whose suit does not appear. Moravek replevied the property, and took exclusive possession under his chattel mortgage of...