Zuncle v. Cunningham

• Citation: 10 Neb. 162,4 N.W. 951
• Parties: ZUNCLE v. CUNNINGHAM.
• Decision Date: 18 March 1880
• Court: Supreme Court of Nebraska

10 Neb. 162

4 N.W. 951

ZUNCLE

v.CUNNINGHAM.

Supreme Court of Nebraska.

Filed March 18, 1880.

Error from Richardson county.

George P. Uhl, for plaintiff in error.

Schoenheib & Thomas, for defendant in error.

MAXWELL, C. J.

The plaintiff commenced an action against the defendant, in the district court of Richardson county, to recover the value of certain goods, wares and merchandise levied upon and sold by the defendant as sheriff. The defendant, in his answer to the petition-- First, denies all the facts stated therein; second, alleges, in substance, that at the time of seizing said property he was sheriff of Richardson county, and levied upon the same by virtue of an order of attachment then in his hands, in an action wherein Anton Schmidt was plaintiff and Gustave Zuncle defendant; that afterwards he levied upon said goods by virtue of an order of attachment issued out of the county court of said county, in an action pending therein, where John H. Conrad and Fred. H. Logeman were plaintiffs, and the Union Furniture Company, of St. Joseph, Missouri, defendant; that the action against Zuncle was settled, but said goods were held on the attachment against the Union Furniture Company; that afterwards said Conrad and Logeman recovered a judgment against said furniture company, and an order was made for the sale of said goods, and the same were thereupon sold and the proceeds applied to the payment of said judgment.

To this count of the answer the plaintiff filed a reply, alleging in substance that there was no such corporation in existence as the Union Furniture Company of St. Joseph, Missouri, and calling upon the defendants to show by what authority, if any, such corporation existed. The defendant demurred to this count and the demurrer was sustained. The plaintiff thereupon obtained leave to file an amended reply, which was stricken from the files upon the ground that it had not been amended. These are the principal errors relied on. It is difficult to perceive how the want of corporate capacity in the furniture company, even if true, could benefit the plaintiff. He must recover, if at all, upon his right to the goods. If the property was his in fact--if, at the time of the levy he was in possession and notified the officer that the property belonged to him, that he was not a mere agent--the officer would sell at his peril. And it could make no difference in such a case that the officer did not credit the statement of the claimant....