Jacoby v. Dvorak , 111 Neb. 683 ( 1924 )


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  • The following opinion on motion for rehearing was filed

    Former judgment modified.

    Heard before Letton, Rose, Dean, Day and Good, JJ., Blackledge and Redick, District Judges. Day, J.

    This case was before the court upon a former occasion, the opinion being reported, ante, p. 683. A motion for rehearing was filed on behalf of the garnishee, and the cause reargued. The material facts are set forth in our former opinion, and need not be restated. Upon a reconsideration of the case a majority of the court are satisfied with the principles of law announced, and with the general disposition of the case. The action is equitable in its nature, and the question presented involves equitable principles. The payee in the certificate of deposit, is also one of the judgment debtors. The payee in the certificate, as pointed out in the former opinion, holds the certificate as a pledge, the pledgor being a codefendant and one of the judgment debtors. Under the peculiar circumstances presented by the record, the presumption is that the pledgee has not transferred the certificates. We have concluded, however, that the order of the *691•district court should be modified so as to require the plaintiffs, upon receipt of the money from the clerk of the court, to execute a bond in an amount equal to the sum paid into court by the garnishee. The bond should run to the garnishee, and be approved and filed with the clerk, and indemnify the garnishee against loss in the event that it is required to pay the amount of the certificate to an innocent holder thereof.

    As thus modified, the judgment of the district court is affirmed.

    Affirmed as modified.

    Rose, J., dissenting.

    In my opinion the garnishee should be discharged.

Document Info

Docket Number: No. 22643

Citation Numbers: 111 Neb. 683, 197 N.W. 428, 1924 Neb. LEXIS 41

Judges: Blackledge, Day, Dean, Good, Letton, Morrissey, Redick, Rose, Rédick

Filed Date: 2/13/1924

Precedential Status: Precedential

Modified Date: 11/12/2024