Fred Krug Brewing Co. v. Healey

(.rOANVILLE, C. The defendant in error commenced an action in the district court for Cuming county against the plaintiffs in error to recover for the conversion of a stock of saloon goods and some saloon fixtures, and had judgment. Three petitions in error are filed, containing 54 assignments each, hut they are identical except that one is a joint petition by the plaintiffs in error and the others are their separate petitions. Under the pleadings and evidence, both, if either, are liable, and the case will be discussed upon this theory. In the condition of the record and the contentions of parties, it would be very difficult to make a full connected preliminary statement of the case without making it unreasonably long, and we prefer to make the necessary statement in connection with the contentions as we discuss them. The first contention is that the petition does not state a cause of action, and the point, if good, is saved by the record. Much argument in the briefs is made on this point, but it is not worthy of extended discussion. The petition shows that the defendant in error Avas in possession of the property involved; that he had a special ownership therein by virtue of a bill of sale, a copy of which is set out; that the bill of sale Avas given to him as security for $180 lent to the OAvner of the property who gave the bill of sale, which was past due and unpaid, and also to indemnify him as surety for such owner upon notes amounting to $800 AA'hich he had been compelled to pay, and no part of which had been repaid to him. Copies of the notes are set out showing that they Avere past due. It alleges an unlawful and wrongful taking and conversion of the property .by the plaintiffs in error. The petition is sufficient. [664] Plaintiffs in error answer jointly, and admit the existence of the bill of sale, but allege that the bill of sale was fraudulent and made for the purpose of defrauding the creditors of Fred Kruger; that it was made March 17, 1901, and not placed upon record until the 22d day of that month; that the defendant in error took possession of the saloon and fixtures on that day; “that becoming heavily indebted to various creditors, among others, the Fred Krug Brewing Company, the said Kruger” made the bill of sale in question, and that defendant in error placed it on record and took possession “for the purpose and with the intent of hindering, delaying and defrauding the said creditors.” They then attempt to plead res judicata, and their plea may be summarized as follows: They allege that, in an action in the county court wherein the Fred Krug Brewing Company was plaintiff and Fred Kruger and the defendant in error were defendants, the defendants therein moved the court to dissolve an attachment; that upon the hearing of the motion, defendant in error appeared in person and by attorney; that evidence was taken upon the motion to discharge the attachment; and that the motion was overruled. As a further statement of such plea, we quote from the answer as follows: “For further answer the defendants show to the court that, upon a final hearing in said cause, upon evidence and argument submitted to said court, all the issues now brought and sought to be made in this pretended present action Avere adjudicated, and it was ordered and adjudged by the county court that the said pretended bill of sale was fraudulent and void, and conveyed to the said Healey no right, title or interest, in or to the goods and chattels, herein described, and it was further ordered that said Felix G-allagher, as such sheriff, sell the said goods, as the goods of said Fred Kruger, to satisfy a debt therein adjudged to be due and OAving the said Fred Krug Brewing Company.” They then alleged that the property in question was sold by virtue of an order of sale issued in that action; that, “the said Felix Gallagher justifies his acts in [665] that regard under a valid and sufficient proceeding of said court in said cause/' and that no appeal or error was prosecuted from the county court. The reply is a general denial. No other or more specific allegation of any indebtedness or final judgment than those aboye quoted are found in the answer. The record in this case is in a very unsatisfactory condition. A great mass of exhibits in the way of letters, telegrams, checks, notes, bills, receipts, affidavits and orders, some 75 in number, are found in the bill of exceptions, with no index to help in finding what is material for us to consider. We have examined the record in regard to each of the 54 assignments of error, and find no one of them sustained in the view we take of the case, and a discussion of them in detail would be of no value to the profession. One of the main contentions is in regard to the plea and proof of res judicata. It is contended by the plaintiffs in error that the court erred in not submitting this question to the jury upon proper instructions. We think there was no error in this regard. The plea that the rights of the parties had become res judicata by the overruling of a motion to discharge an attachment is bad under the ruling in Kimbro v. Clark, 17 Neb. 403. In that case, a husband being sued in attachment, the Avife intervened and claimed title to the attached property, and it Avas held that, upon creditors’ bill against the Avife to subject the property, a judgment against the husband and an order that the attached property be sold avIII not debar the Avife from claiming title, notwithstanding such intervention. Moreover, the pleadings in this regard were not sufficiently shoAvn, if such a plea were good. The original affidavit for an attachment Avas not offered, and therefore the grounds alleged for the attachment are unknown. The motion to discharge was made on the grounds: “1st. Because the facts stated in the affidavit are not sufficient to justify the issuing of the same. 2d. Because the statement of facts in said affidavit are untrue.” The ruling upon the motion is: [666] “Tbe court finds that defendant has not presented sufficient proof to sustain his motion to dissolve said attachment, and that motion should be overruled. Motion is overruled.” The record is insufficient to show an adjudication of defendant in error’s claim or title. After spending much time in analyzing the record, we. are confident that the only verdict that could properly be rendered upon the pleadings and evidence is the one found by the jury. The plaintiffs in error sought to justify under an attachment and order of sale. They have failed in their” evidence in this regard, even if all that Avas offered were received. No affidavit for attachment was shown, no writ of attachment was offered, no levy AAras pleaded or proved; in fact, Avhat was offered as a return to the writ is only an inventory and appraisement, and Gallagher’s testimony shows that he broke into the building and took possession of the property by direction of the brewing company’s agent, in the absence of the defendant in error, and it almost conclusively shows that no valid levy was made. Again, no final judgment in the attachment is pleaded, and no proof of any such judgment Avas offered, outside the recitals of the order of sale, and such recitals shoAV that the action against defendant in error Avas dismissed. Such recitals are insufficient in such case to prove judgment, if one Avere Avell pleaded, Avhicli is doubtful. Section 127 of the code reads: “In pleading a judgment, or other determination of a court or officer of special jurisdiction, it shall be sufficient to state that such judgment or determination Avas duly given or made. If such allegation be controverted, the party pleading must establish, on the trial, the facts conferring jurisdiction.” Complaint is made because, after the evidence Avas closed, the court struck out all that had been introduced showing Avhat had been done in the attachment case. This Avas proper Avhen no proof of the affidavit, writ, levy of the Avrit, or final judgment had been offered. The court should have instructed a verdict for the defendant in error. The [667] jury having found such a verdict, the judgment thereon should be affirmed. 1. Conversion: Petition. One who has possession of personal property, claiming a lien thereoh, may maintain an action for conversion against one who wrongfully attaches the property. It is not necessary, in such case, to set out in the petition the particulars of his lien. 2. Chattel Mortgage: Fraud: Presumption. The presumption of fraud which the statute raises against a mortgagee who fails to take immediate possession of the things mortgaged, is not available to one who attaches the property after the mortgagee has taken it and while he has actual possession thereof under his mortgage. 3. Attachment: Res Judicata. A ruling made upon a motion to dissolve an attachment is not res judicata of the facts involved therein, as against one who, though a party to the proceedings at the time of the ruling, is dismissed therefrom by the final judgment entered in the action. 4. Briefs. The court will, on its own motion, strike from the records a motion and brief which contain personal criticisms of a commissioner of this court, and of his character and motives in the performance of his official duties. We therefore recommend that the judgment of the trial court be affirmed. Fawcett and Albert, CC., concur. By the Court: For the reasons stated in the foregoing opinion, the judgment, of the district court is Affirmed.