Sch.-Dist. of Hastings v. Caldwell

Decision Date29 May 1884
Citation19 N.W. 634,16 Neb. 68
PartiesSCHOOL-DIST. OF THE CITY OF HASTINGS v. CALDWELL.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Appeal from Adams county.

O. B. Hewitt and Batty & Ragan, for plaintiff.

Dilworth & Smith, for defendants.

REESE, J.

This action was brought by the plaintiff in the district court of Adams county, to restrain the defendants from selling the real estate described in the plaintiff's petition. The facts are as follows: On the eighteenth day of October, 1877, the plaintiff recovered a judgment against W. W. Fitzpatrick, J. M. Fitzpatrick, and J. S. McIntyre, in the district court of Lancaster county, for the sum of $1,053.33, and on the tenth day of December of the same year, a transcript of said judgment was filed in the office of the clerk of the district court of Adams county. On the thirteenth day of January, 1878, J. S. McIntyre, one of the judgment defendants, sold and conveyed the real estate in dispute to A. F. Boston, who, on the fourteenth day of November, 1879, conveyed it to R. A. Batty, and he afterwards conveyed it to the plaintiff. On the fourteenth day of August, 1882, an execution was issued on said transcript and levied on said real estate as the property of said J. S. McIntyre, the sale of which the plaintiff enjoined. Upon trial in the district court the injunction was dissolved and the case dismissed. The plaintiff appeals to this court.

The petition alleges that said judgment is not a lien on said real estate, for the reason that the instrument purporting to be a transcript of the judgment rendered by the district court of Lancaster county does not show that the court had any jurisdiction over the said J. S. McIntyre, and that the pretended judgment was not docketed on the court records of Adams county, nor entered in the general index of judgments of said court, was not a lien on the real estate of the said J. S. McIntyre, and that the plaintiff purchased said property without any knowledge of the existence of said judgment. To this petition the defendants answered, setting up their judgment, alleging it was still in force, the filing of the transcript, that it was properly indexed, and that at the time of the filing of said transcript the said McIntyre was the owner of the property, and their judgment was a lien thereon. The plaintiff replied, alleging that said judgment was fully paid and satisfied prior to the issuance of the execution, and that said payment and satisfaction was made by the payment of $290.20 on the fourth day of September, 1878, and by three promissory notes executed by said McIntyre, with J. B. McIntyre as surety, each of said notes being for the sum of $287.33, and that said notes were given and received in full satisfaction of said judgment, and had been since paid, in part; the unpaid notes being still held by the defendants. On the trial of the cause the plaintiff sought to prove this allegation of the reply, to which objection was made and the testimony rejected. Without stopping to inquire whether this question is or is not properly before the court, we will say that, if the fact exists, it is clear that it is one of the elements of the plaintiff's cause of action, and should have been alleged in the petition. “A plaintiff can recover only on the cause of action stated in his petition. It is not the province of a reply to introduce new causes of action. This can be done only by amendment of the petition.” Maxw. Pl. & Pr. 108; Durbin v. Fisk, 16 Ohio St. 534. If the judgment has been paid, it should have been so alleged in the petition, so that the proper issue could have been formed upon that question, and tried as other issues tendered by the plaintiff in an action are tried. This not being done, there was no error in the ruling of the court.

It is further urged that the testimony should have been admitted for the purpose of ascertaining the facts, in order to save to the plaintiff the benefits arising from the collateral securities held by the defendants, if the notes referred to were not received as payment. The same answer must be made to this as to the preceding proposition. There is nothing in the issues of the case which would warrant such action on the part of the court.

The next question presented is that the transcript is not sufficient to create a lien on the property of the judgment debtor, and that there was no lien thereon at the time...

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