"2d,
That on or about the 23d day of April, A. D. 1887, one Ben.
G. Collins commenced an action in replevin in the district
court of said Holt county, Nebraska, against this plaintiff,
to recover the possession of certain goods and chattels
described in his petition, the same being the goods and
chattels in controversy in said action.
"3d,
That an order of replevin was issued in favor of said Ben. G.
Collins, and all the goods and chattels in controversy were
taken on said order of replevin by the coroner of Holt
county, and placed in the possession of the said Ben. G.
Collins.
"4th,
That during the year 1887, the plaintiff was the sheriff of
Holt county, Nebraska, having been duly elected and qualified
as required by statute, and was exercising said office
therein.
"5th,
That at the time of the beginning of said action by Ben. G.
Collins, plaintiff, as the sheriff of Holt county, held such goods and chattels on certain writs of
attachment issued and levied upon the property in
controversy, as the property of one Phillip Bulfer, in favor
of the said R. L. McDonald & Co., W. E. Higman & Co., W. L.
Parotte & Co., D. M. Steele & Co., V. N. Gibson, and H. C.
Fischer, said attachments and the costs thereon accrued
aggregating in the sum of $ 4,000 and over.
"6th,
That the plaintiff filed in said court his answer, setting
forth the fact that he was sheriff, and held such goods on
said writs of attachment, and the further fact that the goods
were, at the time the said attachments were levied, the goods
and chattels belonging to the said Phillip Bulfer, and
subject to levy and sale for the satisfaction of said writs
of attachment, and that the said pretended transfer by the
said Phillip Bulfer to the plaintiff in said action, Ben. G.
Collins, was made in fraud of the creditors of the said
Phillip Bulfer, and with full knowledge on the part of the
said Ben. G. Collins.
"7th,
That the said allegations of the answer so filed by this
plaintiff in said action in the district court, were, on
trial of said cause before Honorable M. P. Kinkaid, judge of
said court, defendant herein, on the 25th day of August,
1887, conclusively established
by a preponderance of the evidence taken at said time, as
will appear from the transcript of said proceedings filed
herewith.
"8th,
That the issues in said action were duly joined, and said
cause brought on for trial before said M. P. Kinkaid, judge
as aforesaid, with a jury, in said court, on the 25th day of
August, 1887, and after a full hearing by the jury of the
testimony produced, and being instructed by the court as to
the law, said jury returned into open court a verdict, as
follows: 'We, the jury in this case, being duly empaneled
and sworn in the above entitled cause, do find and say that,
at the commencement of this action the right of possession of
the property in controversy was in the defendant, and we find
the value of said property at this time to be
of the sum of $ 4,000, and we find the value of the
defendant's possession at the commencement of this action
to be the sum of $ 4,000, and we assess his damages for the
wrongful detention of said property in the sum of one
cent.'
"9th.
That on the 29th day of August, 1887, Ben. G. Collins, the
plaintiff aforesaid, filed in said court his motion for a new
trial of said cause, which motion was heard before his honor,
M. P. Kinkaid, judge of said court, on the 14th day of Nov.,
1887, at which time said court, after having considered said
motion, and acting entirely upon the second, third, fourth,
fifth, and sixth paragraphs of said motion, did overrule the
said motion, with the following proviso: Provided, however,
That the defendant shall remit the sum of $ 1,000 from the
verdict in this case within twenty days from said date,
otherwise the motion for a new trial will be sustained.
"10th,
That the order of said court, so made on the 14th day of
November, 1887, requiring of this plaintiff to remit the sum
of $ 1,000 from said verdict, was made without any authority
of law, and contrary to any authority given to the court
acting upon the motion for a new trial, and was made in
violation of all the known rules of law governing courts in
granting a new trial, for the following reasons:"