Lathrope v. McBride

Maxwell, J. In December, 1886, the plaintiff began an action against George E. Cheney and John Benedict before a justice of the peace of Knox county, and on the trial the following proceedings were had as appear from the transcript: “December 23, 1886, at 10 o’clock in the forenoon, case called, plaintiff failing to appear, and after waiting one hour and having been called three times in open court he is adjudged to be in default. Jury being waived by defendant he proceeds to trial to the court, and after hearing evidence offered by the defendant, to-wit, Nos. 2, 3, and 4, I find that the right of property and right of possession of said pi’operty when this action was commenced was in the defendant, and I assess the value of said property at the sum of $85.89. It is thex’efox’e considered by me that the said defendant have a return of said property taken on said writ of replevin, or in case a return of said property cannot be had that he recover of said plaintiff the value thereof, assessed at $85.89, and costs of said suit.” The case was taken on error to the district court by the plaintiff, where, on the 23d day of May, 1888, thejudgment was affirmed. A transcript of the judgment of the justice was filed in the office of the clerk of the district court of Holt county in February, 1887. At that time the plaintiff possessed a homestead in Holt county and soon afterwards desired to obtain a loan on such homestead. The person who furnished an abstract of title seems to have considered the [291] judgment a lien on the homestead, and hence certified that fact in his abstract. As the plaintiff was unable to procure a loan with a cloud upon the title to the land, he, through one Dryton, paid to the clerk of the district court of Holt county the amount of the judgment and costs and received a receipt therefor as follows: “O’Neill, Neb., March 17, 1887. “Received from John Dryton the sum of one hundred and nine and TTt0- dollars, in full payment of judgment filed by Geo. E. Cheney and John Benedict v. E. M. Lathrope. Said judgment was paid by said John W. Dryton for E. M. Lathrope as agent, and pays said sum under protest and demands to have same held pending action in error of Knox county, Nebraska. “ John McBride, “ Clerk of District Court. “By J. H. Meredith, Deputy.” This action is brought against McBride to recover the money paid upon said judgment. The court below found the issues in favor of the defendant and dismissed the action. In this we think it did right. The judgment was not a lien upon the homestead, and, no doubt, had an action been brought for the purpose of removing the apparent cloud, it would have been sustained — probably at plaintiff’s cost. The plaintiff, however, did not resort to this procedure, but chose the more expeditions way of paying the judgment. This was a voluntary payment and cannot be recovered back. So far as appears the plaintiff was justly indebted in the amount claimed, and the fact that the judgment was afterwards afSrmed in the district court, and no attempt made to have such judgment reviewed in the supreme court, shows that he was satisfied therewith. He certainly has no cause of action against the clerk of the district court of Holt county. The judgment is Affirmed. The other judges concur.