Wonderlich v. Walker
| Decision Date | 19 September 1894 |
| Citation | 60 N.W. 103,41 Neb. 806 |
| Parties | WONDERLICH ET AL. v. WALKER. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. “Where the goods of B. are wrongfully levied upon and sold on an execution and attachment against A., and the plaintiffs in those actions directed the levy and sale, and indemnified the officer, they are jointly liable with him and his sureties for the wrong.” Former decisions of this branch of the case followed and adhered to. See 50 N. W. 445, 33 Neb. 504.
2. In order to obtain a review in this court of the action of a trial court on the admission or rejection of testimony, the portion of the testimony in which it is claimed the error occurred must be specifically and definitely described or pointed out in the assignment in the petition in error.
3. Where the errors claimed to have been committed by the trial court, either in the giving or refusing certain instructions, are grouped in one assignment in the petition in error, they will be examined no further than to determine that one of the instructions given was proper and unobjectionable, or one of those refused was rightly refused.
4. Where there is sufficient evidence to sustain the finding of a jury, such finding will not be disturbed, unless it is clearly wrong.
Error to district court, Gage county; Babcock, Judge.
Action by Fannie C. Walker against E. A. Wonderlich and others to recover damages for the conversion of a stock of goods. There was a judgment for plaintiff, and defendants bring error. Reversed and remanded.
For prior report, see 50 N. W. 445.Rickards & Prout, T. F. Burke, and Griggs, Rinaker & Bibb, for plaintiffs in error.
A. Hardy, for defendant in error.
Fannie C. Walker, plaintiff in the district court of Gage county, and defendant in error here, commenced her action in that court against plaintiffs in error, alleging in her petition that E. A. Wonderlich was a constable in and for Blue Springs township, in Gage county, and Lewis Borngasser, George Poffinborger, and George B. Johnson were his bondsmen on his official bond as such constable, and that the Blue Springs Bank caused an attachment to be issued in an action commenced by it against one S. T. Walker, and placed the writ so issued in the hands of E. A. Wonderlich for service; that Black Bros. had theretofore obtained a judgment against S. T. Walker, and caused an execution to be issued thereon, and delivered to E. A. Wonderlich for levy; that the plaintiff, Fannie Walker, was then the owner and in possession of a stock of groceries, and some fixtures necessary and appropriate for carrying on a grocery business; that on February 18, 1890, the stock and fixtures were in a storeroom in Blue Springs, in Gage county, then occupied by her, and in which she was engaged in and carrying on the business of a retail grocer with the goods, and had a fair trade; that the constable, E. A. Wonderlich, under and following directions given him by the Blue Springs Bank and Black Bros., and having been indemnified by them, levied the writs of attachment and of execution against S. T. Walker on her stock of groceries, and sold them, or what remained in his hands after returning to her a quantity of goods of the value of $250, and at the time of the levy closed her store and ruined her business, all to her damage in the sum of $511.33, for which sum, with interest, she demanded judgment. The Blue Springs Bank answered the petition, denying the ownership of Fannie Walker in the stock of goods and fixtures, and alleging that they belonged to S. T. Walker, the defendant in the attachment suit, and judgment debtor against whom the execution levied by the defendant Wonderlich issued; that S. T. Walker was the husband of Fannie Walker, and he had attempted to convey the goods to her for the purpose of cheating and defrauding his creditors, and among them the Blue Springs Bank and Black Bros.; and, further, generally denying each and every other allegation not expressly admitted or denied. There were some further statements in the answer, but it will not be necessary to notice or quote them here. The answer of Black Bros. was substantially the same as that of the bank, or its effect was to raise the same issues. The answer of the parties who were declared against as signers of the official bond of Wonderlich was that they had signed the bond with the express promise and agreement that two other persons whose names were found written in the body of the bond should also sign, and that it was not to be binding, and not to be delivered to the clerk, until the signatures of such persons were attached to it; that the promised signatures were never obtained. There was also a denial of each and every statement of the petition. Wonderlich's answer admitted that he was constable at the time stated in the petition, and, in its further statements and substance, raised practically the same issues as the answer of the bank and Black Bros. The reply of Fannie C. Walker was a general denial of all new matter contained in the answers. Of the issues presented by the pleadings there was a trial to the court and a jury, a verdict for Fannie C. Walker in the sum of $773.03, from which she filed a remittitur of $189.24; and after separate motions for a new trial, filed in behalf of the respective defendants, had been heard and...
To continue reading
Request your trial