State v. Kinkaid

• Decision Date: 21 March 1888
• Citation: State v. Kinkaid, 23 Neb. 641, 37 N. W. 612 (Neb. 1888)
• Parties: STATE OF NEBRASKA, EX REL. EDWIN HERSHISHER, v. M. P. KINKAID, JUDGE
• Court: Nebraska Supreme Court

37 N.W. 612

23 Neb. 641

STATE OF NEBRASKA, EX REL. EDWIN HERSHISHER, v. M. P. KINKAID, JUDGE

Supreme Court of Nebraska

March 21, 1888

ORIGINAL application for mandamus.

Writ denied and action dismissed.

Uttley & Benedict, for relator, cited: Brown v. Jones, 5 Nev., 374.Steppacher v. Reneau,25 Miss. 114.Moore v. Devol,14 Iowa 112.Wells Questions, Law and Fact, 15.Lloyd v. Brinck,35 Tex. 1.HighEx Leg. Rem., Sec. 235.Williams v. Saunders, 5 Cold., 81.Ex parte Bradstreet, 7 Pet., 634. U.S. v. Peters, 5 Cranch, 115.Haight v. Turner, 2 Johns., 371.Manor v. McCall,5 Ga. 522.State v. Judge, 13 La Ann., 481.

M. P. Kinkaid, pro se, cited: People v. Judges,20 Wend. 658.Ex parte Hoyt, 13 Peters, 279.Ex parte Whitney, Id., 404.HighEx. Leg. Rem., Sec. 188.

OPINION

MAXWELL, J.

This is an application for a mandamus against the judge of the twelfth district.The relator alleges in the petition, "That the defendant above named was, during the year 1887, and now is, the judge of the 12th judicial district of the state of Nebraska, in which is situated the county of Holt, in said state.

"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:"

The reasons are set out at length, wherein it is claimed that the defendant had no authority to order the plaintiff to remit $ 1,000 from the verdict, and it is claimed that it was the duty of the judge to render judgment on such verdict.The record shows that the verdict was set aside December 6, 1887, and a new trial granted.

Complaint is also made that, on the 19th of December last, and after the defendant had set the verdict aside and granted a new trial, the relator announced himself ready for trial, and insisted in proceeding with said cause, but the defendant, on the motion and affidavit of one Chapman, an attorney for Collins,...