Smith v. Boyer

• Decision Date: 11 June 1892
• Citation: 52 N.W. 581,35 Neb. 46
• Parties: M. E. SMITH ET AL. v. BOYER & DAVIDSON
• Court: Nebraska Supreme Court

52 N.W. 581

35 Neb. 46

M. E. SMITH ET AL. v. BOYER & DAVIDSON

Supreme Court of Nebraska

June 11, 1892

REHEARING of case reported 29 Neb. 76.

AFFIRMED.

R. M Snavely, and E. M. Bartlett, for plaintiffs in error.

G. M Lambertson, contra.

OPINION

POST, J.

The facts in this case are fully stated in the opinion previously filed, 29 Neb. 76. At the time of the filing of that opinion the conclusion was reached by the court that the order of the district court discharging the attachment was not sustained by the evidence and that the judgment should be reversed. A rehearing was subsequently allowed, and, with the assistance of additional briefs, has been again considered.

It is not necessary to discuss the question of the validity of the mortgages to Holland and the First National Bank of Indianola. There is no evidence in the record which tends to impeach either; nor is that question put in issue by the motion to discharge the attachment. The only question presented by the motion is the right of plaintiffs to an attachment against the defendants Boyer & Davidson. Defendants, at the time of the execution of the mortgages, were indebted to Raymond Bros, exceeding $ 2,000. For this amount they executed their three separate notes and immediately confessed judgment on each in the county court of Red Willow county, but refused to confess judgment in favor of plaintiffs. In addition to the stock of goods covered by the mortgages there is no evidence in the record that defendants owned any property except the sum of $ 187.50 due from one McClung, which, after the execution of the mortgages, Boyer, one of defendants, discounted for $ 175; a bill, the amount of which does not appear, due from one Sibbett, which was paid September 24 from the proceeds of a loan upon a note with Boyer as surety, and a trotting horse estimated to be worth $ 300 or $ 400. It is in evidence, however, that Boyer's wife claimed the horse in question as her separate property. The only witness who claims any knowledge of the facts testifies that Davidson had no property whatever aside from his interest in the stock of goods. There is also evidence tending to prove that Boyer "run away" to Kansas, but this is denied by Mr. Starr, one of the witnesses for defendants, who testifies positively that Boyer remained in Indianola for two days after the day on which he is charged with having fled to Kansas. There is other evidence in the...