Smith v. Ainscow

• Decision Date: 06 July 1881
• Citation: 9 N.W. 646,11 Neb. 476
• Parties: CHAUNCEY H. SMITH, PLAINTIFF IN ERROR, v. RACHAEL AINSCOW, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

9 N.W. 646

11 Neb. 476

CHAUNCEY H. SMITH, PLAINTIFF IN ERROR, v. RACHAEL AINSCOW, DEFENDANT IN ERROR

Supreme Court of Nebraska

July 6, 1881

ERROR to the district court for Douglas county. Tried below before SAVAGE, J.

AFFIRMED.

Charles J. Green and E. F. Smythe, for plaintiff in error.

George E. Pritchett, for defendant in error.

OPINION

COBB, J.

The plaintiff in error having filed no brief in this case, nor even pointed out in his petition in error, specifically, the points upon which he relies for a reversal of the judgment the same should be affirmed pro forma. Nevertheless we have carefully examined the record, but fail to find any material error.

It seems that one George P. Hines, and Jennie Hines, his wife executed a chattel mortgage to one A. M. Bernstein, upon certain household goods, the property of said Jennie Hines. This mortgage was assigned to Rachel Ainscow, the defendant in error. The mortgaged property--the debt having matured--was taken by George P. Hines, and Edward Ainscow, husband of the defendant in error, to the auction rooms of the plaintiff in error, and placed in his hands for sale at auction as the property of said Jennie Hines to foreclose said mortgage. The plaintiff in error received said property accordingly, and proceeded to sell it. While the sale was progressing, certain of the creditors of George P. Hines caused process of garnishment to be issued and served on the plaintiff in error, and upon his answer being made in said suit of garnishment, the justice before whom the matter was pending ordered him to pay the proceeds of such sale into court, except $ 25.35, which order he complied with, having first been indemnified against all risk in so doing by one of Hines' creditors. Defendant in error then brought suit and recovered judgment against plaintiff in error. To the said claim of defendant in error plaintiff in error pled the said proceedings in garnishment, and the order of said justice to pay said money into court, and his compliance therewith, and now brings this case in error to reverse said judgment.

Had the plaintiff in error notified the defendant in error of the proceedings in garnishment, allowed her to manage the defense thereto, and been particular to have stated all the facts in the case in his answer to the garnishee process, then the order of the justice of the peace upon him to pay the said money into justice's court might have...