DocketNumber: No. 5702
Citation Numbers: 44 Neb. 640
Filed Date: 4/5/1895
Status: Precedential
Modified Date: 7/20/2022
This was an equitable proceeding in the district court for Buffalo county by which it was sought to prevent the sale of lot No. 814 in the city of Kearney by the defendant Schars, as sheriff, on execution to satisfy a judgment in favor of his co-defendant, Broatch, and against the firm of Nelson & Hanson. An answer was filed, which need not bfe noticed further, for reasons which will hereafter appear.
“1. The court erred in granting said decree.
“2. Said decree is not sustained by sufficient evidence.”
The paper purporting to be a bill of exceptions was, on ■motion of the defendant in error, stricken from the record at a former term, thus leaving for determination a single question, viz., Is the decree warranted by the pleadings? The finding being for the defendant in error on substantially all of the issues, our examination wjll be confined to the petition alone, since it is apparent that if a cause be therein stated for the relief sought, the decree must be affirmed. By it we are informed that on the 25th day of October, 1882, N. O. Nelson and John Hanson, then partners doing business in the firm name of Nelson & Hanson purchased the lot above described and procured a deed to be made therefor to said firm. On the 2d day of February, 1884, Nelson, by deed, in due form conveyed his interest in said lot to Hanson, said firm having been dissolved in the meantime by mutual consent. On the 6th day of the same month Broatch, plaintiff in error, recovered a judgment against the said firm in the county court of Buffalo county on a firm indebtedness for $335.32 and costs, taxed at $2.60, and on the 20th day of the same month ■caused a transcript thereof to be filed with' the clerk of the district court for Buffalo county. On the 2d day of September, 1885, the defendant in error purchased said premises from Hanson and one Gillespie, although the interest of the latter does not appear.
The real controversy relates to the character of the judgment, a transcript of which is attached to the petition and made a part thereof. If regarded as a personal judgment against Hanson, it was a lien upon the premises at the time
It is not necessary to review the cases cited in the brief of the plaintiffs in error. It is sufficient that the conclusion here reached in nowise conflicts with King v. Bell, 13 Neb., 412, Morrissey v. Schindler, 18 Neb., 672, Rowland v. Shephard, 27 Neb., 494, and First Nat. Bank v. Sloman, 42 Neb., 350. It follows that the petition states a cause of action and that the decree restraining the sale of the lot described, to satisfy the judgment against Nelson & Hanson, is right and should be
Affirmed.