Smith v. Johnson

• Decision Date: 06 February 1895
• Citation: 43 Neb. 754,62 N.W. 217
• Parties: SMITH ET AL. v. JOHNSON ET AL.
• Court: Nebraska Supreme Court

43 Neb. 754

62 N.W. 217

SMITH ET AL.

v.JOHNSON ET AL.

Supreme Court of Nebraska.

Feb. 6, 1895.

Syllabus by the Court.

1. “In a legal sense, a party absconds when he hides, conceals, or absents himself clandestinely, with the intent to avoid legal process.” Gandy v. Jolly, 52 N. W. 376, 34 Neb. 536, followed.

2. An affidavit filed in an action before a justice of the peace to obtain the issuance of a writ of attachment contained the allegation “that said defendants have absconded, with intent to defraud creditors,” and the summons issued in the case was returned indorsed, “I could not find the defendants within my county,” with signature of the officer. Held, that the action was properly instituted in the county of the debtors' former residence, and where property could be levied upon, and that constructive service was warranted and proper, under the facts as they then appeared in the case.

3. A finding by a justice of the peace, in an attachment suit, of the sum due plaintiff, an assessment of plaintiff's recovery, and an order of sale of the attached property, is but a judgment in form against defendants, and, where the only relief sought is to subject the attached property to the payment of the debt, is sufficient as an entry, both in form and in substance, and is not void.

4. The certificate of a notary public to an affidavit is presumptive evidence of the facts stated in such certificate, including the statement that affiant signed the affidavit.

5. It is without the province of an officer holding property under levy of writ, pending sale by order of the court in attachment proceedings, to question the validity or sufficiency of a schedule and affidavit made according to the provisions of the statute governing such proceedings, and filed by the attachment debtor for the purpose of setting aside the property levied upon as exempt.

6. “Where personal property is seized under an execution or writ of attachment against a debtor who has neither lands, town lots, nor houses subject to exemption, and an inventory under oath is made and filed by such debtor, as provided by section 522 of the Code, it is the duty of the officer holding the writ to call appraisers to determine the value of the property; and the neglect or refusal of the officer to do so will not deprive the debtor of his exemptions, but he may sue for the value of the property.” Bender v. Bame (Neb.) 59 N. W. 105, followed.

7. Where, in an attachment case, the defendant files the inventory, under oath, prescribed by statute, to avail himself of the exemptions allowed by section 521 of the Code, and the officer holding the writ fails or refuses to cause the property to be appraised, and allow the debtor to select therefrom such property and to the value as the law provides he may, but sells the same regardless of the application for the exemption, in an action by the debtor against the officer, to recover the value of the property, the inventory and its accompanying affidavit are competent evidence to prove the facts they were intended to show, within the scope and intent of the law providing for them, and the purpose for which they were formed.

8. The verdict in this case held to be against the weight of the evidence, and manifestly wrong.

Error to district court, Buffalo county; Hamer, Judge.

Action by M. R. Smith and another against N. H. Johnson and others. Judgment for defendants, and plaintiffs bring error. Reversed.Dryden & Main, for plaintiffs in error.

Greene & Hostetler, for defendants in error.

HARRISON, J.

The plaintiffs commenced an action in the district court of Buffalo county, alleging in the petition filed therein: That they were husband and wife, residents of the state of Nebraska; and M. R. Smith, the head of a family. That on or about June 11, 1889, they were the owners and in possession of certain goods and chattels, a list of which was attached to the petition, from which it appeared that it was composed almost entirely of household furniture, etc., and all of the value of $137.10. That on or about said 11th day of June, 1889, N. H. Johnson instituted an action against the plaintiffs herein, before one William R. Learn, a justice of the peace of said county, and caused to be issued a writ of attachment, under and by virtue of which E. A. Cutting, at the instance and request of said N. H. Johnson, seized the property of plaintiffs, as hereinbefore described. That no service of summons or other service was ever had upon plaintiffs herein (defendants in the attachment case) in such action, but that such proceedings were had in that case that on the 25th day of July, 1889, a pretended judgment was rendered against the plaintiffs herein. That the same was wholly void, for the reason that the court had acquired no jurisdiction over the persons of these plaintiffs (defendants in said suit). That, after the rendition of said judgment, M. R. Smith, one of the plaintiffs herein, filed in the office of William R. Learn, the justice of the peace before whom such judgment was obtained, an inventory and affidavit filed with the petition, marked “Exhibit A,” claiming all of the property hereinbefore described exempt from sale under execution or attachment proceedings. “That afterwards, and on or about the 25th day of August, 1889, the said defendant E. A. Cutting, by and at the request of the said N. H. Johnson, proceeded to sell the property by virtue of a pretended order of sale issued by the said Wm. R. Learn. The plaintiffs charge the fact to be that neither of the said plaintiffs herein was the owner of any land, town lots, or houses subject to an exemption as a homestead, and the property so levied upon and sold as aforesaid was specifically exempt from attachment, and that said defendants herein have, by virtue of the proceedings hereinbefore set forth, obtained possession of said goods and chattels, and unlawfully and wrongfully converted them to their own use, to the damage of the plaintiffs in the sum of $137.10. Wherefore, the said plaintiff prays for judgment against the said defendants for the sum of $137.10, with interest from the 11th day of June, 1889, at seven per cent. per annum, and for costs of suit.” The answer of the defendants was as follows: “Come now the said defendants, and, for answer to complaint herein, say that the property described in said petition was seized by an order of attachment by a court of competent jurisdiction, and went to final hearing, and said attachment was, upon due consideration of said court, sustained, and an order of sale of said property issued in due form, and said property was, under said order of sale, duly sold, or at least a part thereof. Defendants deny each and every allegation in said complaint not herein admitted, and ask to go hence with their costs.” There was a reply filed, denying each and every allegation of new matter contained in the answer. A trial of the issues before the court and a jury resulted in a verdict for the defendants, upon which, after a motion for a new trial was heard and overruled, judgment was entered, and the plaintiffs bring the case here for review. The affidavit filed in the case, before the justice of the peace, to obtain the issuance of the writ of attachment, contained the following, with other statements, as grounds therefor: “He also makes oath that said defendants have absconded with intent to defraud their creditors.” From the record of the proceedings in the case before the justice of the peace, introduced in evidence in this action, it appears: That summons was issued, and returned indorsed: “I could not find the defendants within my county. E. A. Cutting, Constable.” That the writ of attachment was duly served by seizing the property described in the petition in the case at bar. The case was continued for the 40 days prescribed by law, and service was had by publication; and, on the day set for hearing, judgment was entered against the plaintiffs, the entry of the same being as follows: “July 25, 1889, 9 o'clock a. m., the cause came on for hearing upon the bill of particulars and the evidence, on consideration whereof I find that there is due from the defendant to the plaintiff the sum of $18.27. It is therefore considered by me that the said N. H. Johnson recover from the said M. R. Smith and Mrs. M. R. Smith the said sum of $18.27, and his costs herein expended, taxed by me at $13.85; and the constable is ordered to advertise and sell in the manner provided by law so much of the property heretofore attached as will satisfy said judgment and costs.” Immediately following this entry, as shown by the transcript of the docket, follow these statements: “July 25, 1889, defendants filed motion and affidavit to discharge property exempt.” “August 10, 1889, at plaintiff's request, issued order of sale, and gave same to constable Cutting.” And it further appears that the attached property was sold, the proceeds therefrom amounting to $67.85.

It is argued by attorneys for plaintiffs that the judgment in this case was void for two reasons: First, no affidavit was filed, setting forth the facts necessitating service by publication; second, no personal...