Reed v. Maben

• Decision Date: 09 June 1887
• Citation: 33 N.W. 252,21 Neb. 696
• Parties: REED AND OTHERS v. MABEN.
• Court: Nebraska Supreme Court

21 Neb. 696

33 N.W. 252

REED AND OTHERS

v.MABEN.

Supreme Court of Nebraska.

June 9, 1887.

Syllabus by the Court.

Attachment, although an ancillary remedy, and applicable to a limited class of cases, yet within its limits rests upon its own facts, and not upon the facts of the action.

R., J. & Co. sued M. in the county court, and obtained an order of attachment. On motion and hearing the attachment was dissolved. Upon the trial the defendant obtained judgment. Upon error in the district court the judgment dissolving the attachment was reversed, and upon appeal, and retrial of the action in the district court at a subsequent term, the plaintiff obtained judgment. But the court made a special finding that at the date of the commencement of the action the debt sued on was not due, and thereupon dissolved the attachment. Held error, and reversed.

Error from Holt county.Groff & Montgomery and Uttley & Small, for plaintiffs.

M. P. Kinkaid, for defendant.

COBB, J.

This cause arises upon a petition and proceeding in error, by the plaintiffs in error, to the district court of Holt county, upon the alleged errors of said court in a certain attachment proceeding lately pending therein, in which they were plaintiffs, and the defendant in error was defendant.

It appears, from the record, that the plaintiffs commenced an action against the defendant, in the county court, for a certain bill of goods sold and delivered by them to him, and caused an order of attachment to be issued therein, and attached certain chattels of the defendant. The defendant answered to the merits, and also contested the attachment by motion. Upon the trial, judgment was rendered for the defendant; and upon the hearing of the motion the same was sustained, and the attachment discharged. The judgment on the merits of the case was taken to the district court of said county by appeal, and the order discharging the attachment was also taken to that court by proceedings in error.

It appears, from the manner in which the transcript is made up and presented to this court, that, in the district court, the matter of error was first heard. I here transcribe the journal entry showing the action of the court thereon: “Now, on the nineteenth day of May, 1885, this cause coming on for hearing upon the motion of the defendant to strike the evidence from the files, for the reason that there was no bill of exceptions preserved, as required by law, and the court after hearing the arguments of counsel, and being fully advised in the premises, does overrule the motion. * * * Thereupon, on this day, this cause came on for hearing upon the petition in error, and the evidence in the case, and the court, after hearing the arguments of counsel, and being fully advised in the premises, does find as follows: (1) The court erred in discharging the attachment issued in said action upon the testimony in the record. It is therefore considered by the court that the judgment and order of the county court, discharging the attachment issued in said action from the property attached therein, be, and the same is hereby, reversed, and that the attachment be reinstated to all the property attached therein, and the costs taxed to the defendant in error,” etc.

The case, on appeal, in the district court, does not appear to have been dis posed of at the same time or term with the above proceedings, as amended pleadings are shown to have been filed in the case as late as December 16th of the same year, and, at some time not shown by the journal entries, the cause came on for trial on the amended petition, and answer thereto, presumably to the court; “and,” continues the journal entry, “the court, being fully advisedin the premises, finds that at the time of the commencement of this action the * * * cause of action in this case was not due, and that no cause of action existed in favor of plaintiffs against defendant at the time of the commencement of this action. And the court further finds that since the commencement of this action, and during the pendency thereof, the account described in the amended petition has matured, and there is now due to the plaintiffs, on the cause of action in their amended petition this day filed, the sum of $270.78, and that plaintiffs should recover on said cause of action. Wherefore it is considered by the court that the plaintiffs, Reed, Jones & Co., have and recover of and from the defendant, L. R. Maben, the sum of $270.78; and that this judgment bear interest at the rate of 7 per cent. per annum; and that defendant recover his costs herein expended; and that plaintiff recover no costs in this action.” It further appears that thereupon the plaintiffs moved the court for an order for the sale of the attached property, as upon execution to satisfy the...