School Dist. of City of Hastings v. Caldwell, Hamilton & Co.
| Decision Date | 29 May 1884 |
| Citation | 19 N.W. 634,16 Neb. 68 |
| Parties | SCHOOL DISTRICT OF THE CITY OF HASTINGS, PLAINTIFF AND APPELLANT, v. CALDWELL, HAMILTON & CO. DEFENDANTS AND APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Adams county. Heard below before MORRIS, J.
AFFIRMED.
O. B Hewett and Batty & Ragan, for appellant.
Dilworth & Smith, for appellees.
COBB, CH. J., did not sit.
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 18th day of October, 1877, the defendants recovered a judgment against W. W. Fitchpatrick, J. M. Fitchpatrick, and J. S. McIntyre, in the district court of Lancaster county for the sum of $ 1,053.33, and on the 10th 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 13th 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 14th day of November, 1879, conveyed it to R. A. Batty, and he afterwards conveyed it to the plaintiff. On the 14th 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 full 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 4th 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 enquire 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. Maxwell's Pleading and Practice, 108. Durbin v. Fisk, 16 Ohio St. 533. 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 defendant, and that there was no lien thereon at the time of the purchase from him by the plaintiff's grantor. The transcript is a certified copy of the journal entry of the district court of Lancaster county, in which the judgment is rendered against McIntyre. No reference is made...
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