Summers v. Simms

• Decision Date: 17 May 1899
• Docket Number: 8906
• Parties: CHARLES E. SUMMERS, SHERIFF, v. W. A. SIMMS ET AL
• Court: Nebraska Supreme Court

79 N.W. 155

58 Neb. 579

CHARLES E. SUMMERS, SHERIFF, v. W. A. SIMMS ET AL

No. 8906

Supreme Court of Nebraska

May 17, 1899

ERROR from the district court of Fillmore county. Tried below before HASTINGS, J. Affirmed.

AFFIRMED.

John D Carson, Robert J. Sloan, Ellis, Reed, Cook & Ellis, for plaintiff in error.

W. C Sloan, contra.

OPINION

HARRISON, C. J.

During the early part of the year 1890 an arrangement was effected by which certain parties, inclusive of the defendants in error, respectively executed and delivered to one John H. Wright their promissory notes, those of defendants in error being each in the sum of $ 100. All the notes aggregated in amount $ 1,950. Wright at the time to which we have referred was possessed of very little property and no available capital and desired to engage in a general retail mercantile business at Strang, this state, and the notes were given to enable him to obtain the funds or credit necessary to put into active existence his business intentions and wishes. The obligations were deposited in a bank which furnished him $ 1,300 in money to use in the purchase of goods. Whether the notes were given and deposited for the purpose of securing a loan solely, or with the further design of inducing parties of whom Wright should order goods to allow him credit and partially for the benefit of such parties, was one of the issuable questions of this action. In May or June, 1890, the projected business venture was effectuated and became an actuality, and continued until the 6th day of the month of February, 1891, when a transfer of the stock of goods which Wright then had was made to the defendants in error. Wright had purchased goods of a number of wholesale houses or firms on credit, and for each of several of such creditors an action was instituted, in which a writ of attachment was procured to issue and a levy of it was made on the stock of goods. For the defendants in error this, a suit of replevin, was commenced and the goods were taken under the writ and delivered to them. The action was prosecuted to a judgment, which in an error proceeding to this court was reversed and the cause remanded to the district court for further hearing. For report of the opinion then filed see Simms v. Summers, 39 Neb. 781, 58 N.W. 431. In said opinion is a full statement of the matters of controversy, to which we now refer for such incidents of it as we have omitted at this time. From another judgment of the trial court this proceeding has been prosecuted.

In the answer in the district court for plaintiff in error it was admitted that but for the affirmative matters of defense set forth in the answer defendants in error would have been at the commencement of the suit and at all times entitled to the immediate possession of the goods or property, also entitled to judgment against the plaintiff in error for the costs of the suit, and for damages in the sum of one cent for the wrongful detention of the goods. The substance of the affirmative pleas of the answer was in regard to a transfer of the stock of goods by John H. Wright to the defendants in error and that the transfer was fraudulent as to his creditors and void.

At the trial counsel for plaintiff in error (the sheriff) asserted the right to open and close the introduction of evidence and arguments to the jury. This was denied, and that it was refused is the chief complaint at this time. The petition contained a plea, in general terms ordinarily employed in replevin actions, of the right of defendants in error to the immediate possession of the goods and for damages in the sum of $ 300 for unlawful detention. The reply was a general denial of the allegations of new matter in the answer. That the party to an action who, from the state of the issues joined, if no evidence is introduced, will suffer a judgment is entitled to open and close the evidence and arguments, is a right given by statute (Code of Civil Procedure, sec. 283) and it is substantial error to deny the right, but whether applicable in action of replevin we are not called upon in this case to decide. In the case of Bixby v. Carskaddon, 29 N.W. 626, it was said: "The plaintiff claims to have purchased the goods in controversy of one Billings, and the defendants pleaded that such purchase and sale was made to hinder and delay the creditors of Billings, and was therefore fraudulent. (1.) Prior to the last trial the defendants filed a pleading, admitting that the plaintiff was in possession of the property in controversy, and that he was rightfully entitled to such possession; that the detention of the...