Citation Numbers: 23 Neb. 228
Judges: Other, Reese
Filed Date: 1/15/1888
Status: Precedential
Modified Date: 7/20/2022
This suit was instituted in the district court of Gage county, by defendants in error, and is in the nature of a
The answer of plaintiffs in error, in substance, admitted the transfer of the property as alleged in the petition, but denies the fraudulent intent of either of the defendants, plaintiffs in error, and alleged that the land was purchased with the money belonging to Barbara, in her absence, and without her knowledge or. consent the title was taken by Henry; and that on the day named in the petition the title was transferred to her, to whom it actually belonged; and that the land being insufficient to pay the whole of the indebtedness to her by Henry, the transfer of the personal property was made in liquidation thereof; that at the said time Barbara had no knowledge that Henry was in any way indebted to plaintiff or any other person, and that in fact Henry was not indebted to plaintiffs as he, Henry, supposed, but that the judgment referred to was subsequently rendered against him in a transaction in which he did not believe himself to be in any way indebted to-plaintiffs; that the whole transaction of the conveyance of the property from Henry to Barbara was in the best of faith, with ño intent or purpose to defraud any one, and -for value.
Plaintiffs’ reply was a general denial. The cause was tried to the court, who found in favor of plaintiffs in error as to the real estate, but in favor of defendants in error as to the personal property, and that at the commencement of the suit “Barbara Stoll held personal property of the-defendant, Henry C. Stoll, under transfer from him, subject to the payment of plaintiffs’ judgment claimed herein, which is $268.20, in an amount sufficient to pay said
The failure to file a motion for a new trial must, to a great extent, limit our investigations in this review, as it has been the uniform holding of this court that, in order to obtain a review of a case in the supreme court on error, a motion for a new trial must be made and the errors specifically pointed out. But as the errors assigned are confined principally to the general judgment and finding of the court, we have examined the case for the purpose of ascertaining whether or not the judgment is sustained by sufficient evidence.
The real contention of plaintiffs in error seems to be that, as the finding was in favor of defendants in error upon the real estate involved in the action, the personal property was tangible, situated upon the premises in question, within the county of Gage, and that an execution on defendants’, judgment could have been levied thereon and all the questions involved in this case could have been disposed of in an action at law. In short, that defendants in error had an adequate and complete remedy by the levying of their execution, and that therefore this action cannot be maintained. Ordinarily, we think, this contention would be correct; and were it shown by the finding of the court, that the personal property in the possession of Barbara consisted of specific property, as live stock, farming implements, grain, etc., it might have been levied upon by the execution and all the questions involved in its ownership tried by the ordinary legal methods. But the finding of the court is silent upon this question. From the finding it appears that, at the commencement of this action, Barbara held personal property of defendant, Henry, under transfer from him, subject to the payment of plaintiffs’ judgment.
It would have relieved the case of some embarrassment had the district court ascertained the value of the property in the hands of Barbara, at the time of the commencement of this action, as well as the amount of the judgment involved, instead of the general finding that it was sufficient to pay said amount. Rut as no objection is made on this particular .ground, the finding of the court must be deemed correct and cannot be molested on that account.
The judgment of the district court is therefore affirmed.
Judgment affirmed.