Storz v. Finkelstein

• Court: Nebraska Supreme Court
• Writing for the Court: NORVAL
• Citation: 48 Neb. 27,66 N.W. 1020
• Parties: STORZ ET AL. v. FINKELSTEIN ET AL.
• Decision Date: 10 April 1896

48 Neb. 27
66 N.W. 1020

STORZ ET AL.
v.
FINKELSTEIN ET AL.

Supreme Court of Nebraska.

April 10, 1896.

Syllabus by the Court.

1. The granting of permission to file a reply out of time, or during the trial, rests largely in the legal discretion of the trial court.

2. An order denying a continuance of a cause will not be reversed, except for an abuse of discretion.

3. Where intoxicating liquors are sold in this state for the purpose of enabling the person to resell them, contrary to, or in violation of, the laws of this state, and the vendor has the knowledge of the illegal purpose of the buyer, and participates with him in the illegal traffic, the sale is void, and no recovery can be had for the purchase price of the liquors thus sold.

4. In the absence of malice, an action for the wrongful suing out of an attachment can be maintained alone on the attachment bond. To maintain an action independently of the statute, and not on the bond, malice in suing out the writ, and want of probable cause, must be averred and shown. Jones v. Fruin, 42 N. W. 283, 26 Neb. 76.

5. In an action on an attachment bond, where the answer denies each allegation in the petition, the burden is upon the plaintiff to establish the execution of the bond, and to show that the attachment was wrongfully issued,--that is, that the ground stated in the attachment affidavit did not exist.

6. It is not enough that it be shown that the attachment was merely dissolved. Eaton v. Bartscherer, 5 Neb. 469, followed.

7. This court will not weigh the evidence to see if it sustains the verdict, when the bill of exceptions on its face reveals that a deposition introduced and read upon the trial has been omitted therefrom, even though the trial judge has certified that the bill contains all the evidence offered or given upon the trial.

Error to district court, Douglas county; Keysor, Judge.

Action by L. M. Finkelstein against Gottlieb Storz and others in which there was a judgment for plaintiff. On the death of plaintiff, the judgment was revived in the name of Lena Finkelstein, administratrix, and John O. Malcolm, administrator. Defendants jointly and severally prosecute error. Reversed.

[66 N.W. 1020]

Lake, Hamilton & Maxwell, for plaintiffs in error.

Estabrook & Davis and Chas. E. Clapp, for defendants in error.

NORVAL, J.

This action was brought upon an attachment bond by Louis M. Finkelstein against Gottlieb Storz and Joseph D. Iler, as principals, and Theodore Olsen, as surety, upon said bond, to recover damages for the alleged wrongful suing out of a writ of attachment, and levying it upon certain personal property of the plaintiff. The petition contains the usual averments. Storz and Iler, in their answer, admit the bringing of the attachment suit, the filing of an affidavit for attachment, the issuing of the writ of attachment, the levying thereof on plaintiff's property, and that the court discharged the attachment. All other allegations in the petition they deny. They also aver that the affidavit for attachment was made in good faith, and that they had probable cause to believe the allegations therein contained were true. The answer further pleads, as a set-off, that plaintiff is indebted to Storz and Iler in the sum of $388.43, with interest thereon, on an account for beer sold and delivered to plaintiff at his request, for which amount, with interest, they pray judgment. The defendant Olsen answered by a general denial of each allegation contained in the petition. After the jury had been impaneled, a reply was filed by the plaintiff. The first and third paragraphs thereof were stricken out by the court, and the defendants filed a general demurrer to the second paragraph, which was overruled. There was a verdict in favor of the plaintiff for the sum of $999.92, and the defendants' separate motions for a new trial were overruled, and judgment rendered upon the verdict. Afterwards, on the death of the plaintiff, the judgment was revived in the name of Lena Finkelstein, his administratrix, and John O. Malcolm, his administrator. The defendants jointly and severally prosecute error.

The first error assigned is based upon the ruling of the trial court permitting the plaintiff to file a reply to the answer of Storz and Iler after the jury had been sworn. The matter of granting or refusing permission to answer pleadings, or to file pleadings out of time, or during the trial, rests largely in the legal discretion of the trial court; and this court will not interfere with a ruling in that regard, unless there has been an abuse of discretion. This is the settled law of this state. Hale v. Wigton, 20 Neb. 83, 29 N. W. 177;Brown v. Rogers, 20 Neb. 547, 31 N. W. 75;Ward v. Parlin, 30 Neb. 376, 46 N. W. 529; Blair v. Manufacturing Co., 7 Neb. 147. The discretion of the court below was not improperly exercised in allowing the reply to be filed.

Immediately upon the filing of the reply, the defendants asked the court to continue the cause, for the reason that they were unable to proceed to trial, on account of the reply putting in issue the averments in their answer, which request was denied by the court. In this it is claimed there was error, and section 147 of the Code of Civil Procedure

[66 N.W. 1021]

is cited to sustain the contention. This section provides that, “when either party shall amend any pleading or proceeding, and the court shall be satisfied, by affidavit or otherwise, that the adverse party could not be ready for trial in consequence thereof, a continuance may be granted to some day in term, or to another term of court.” This section contemplates that a cause may be continued where a party, in consequence of the amending of the pleading of his adversary, is unable to go to trial. But the party seeking the postponement must satisfy the court of the existence of grounds therefor by affidavit or other testimony. An application for continuance is addressed to the discretion of the trial court, and it must appear that there has been a clear abuse thereof in denying it; else the ruling will not be disturbed in the appellate court. Trust Co. v. Hamer, 40 Neb. 281, 58 N. W. 695; Railroad Co. v. Conlee, 43 Neb. 121, 61 N. W. 111;Stratton v. Dole, 45 Neb. 472, 63 N. W. 875. The reply pleaded affirmative defenses to the set-off set forth in the answer, it is true; but the record fails to disclose that any showing was made in support of the motion for a continuance. The court below could not know, without such showing, that the defendants were unprepared to meet the issues tendered by the reply. If a postponement of the trial was desired, to meet the evidence which it was expected the plaintiff would adduce in support of the averments in his reply, the...