Michigan Stove Co. v. Miller , 43 Neb. 332 ( 1895 )

Norval, C. J.

This action was commenced in the county court by the plaintiff in error on an account for goods sold and delivered in the sum of $169, and on an accepted draft for $150.14. An affidavit for an attachment was filed, alleging that the defendant had disposed of his property with the intent to defraud his creditors. An undertaking in attachment was given, an order of attachment was issued, which was levied upon certain property as belonging to the defendant, and one A. G. Scott was garnished. The defendant moved to dissolve the attachment on the grounds that the affidavit for attachment does not state, facts sufficient to authorize the issuance of an attachment, and that the statements contained in said affidavit are untrue. This motion was heard upon affidavits and oral testimony, which motion was overruled, and a bill of exceptions embodying the testimony adduced upon said hearing was settled and allowed by the county judge. Subsequently the cause was tried to the court. A jury being waived, judgment was rendered in favor of the plaintiff, and an order for the sale of the attached property was issued. The defendant prosecuted a petition in error to the district court, where the plaintiff filed a motion to strike the bill of exceptions from the files, for the reason that the county judge had no authority to sign the same, which motion was denied. The order of the county court sustaining the attachment was reversed, and the attachment dissolved.

No claim is made in this court that the original affidavit for attachment was defective, or insufficient, or that the district court based its decision upon that ground. On the contrary, it is conceded that the court below, in reaching the conclusion it did, decided and held that the statements contained in the attachment affidavit were untrue. The proposition, therefore, presented by the record for our consideration is whether the county judge exceeded his jurisdiction in signing the bill of exceptions in this case. Since the decision in the district court was pronounced., the precise question herein involved, after an extended review of the statutes and authorities bearing thereon, was passed upon in Moline, Milburn & Stoddard Co. v. Curtis, 38 Neb., 520. It was there decided that a county judge is without authority to sign a bill of exceptions embodying the evidence used on the hearing of a motion to vacate an attachment. (Real v. Honey, 39 Neb., 516; Hopkins v. Scott, 38 Neb., 661; Donaldson v. Fisher, 43 Neb., 260.) No good reason has been advanced for overruling the doctrine of these cases. We would be better satisfied if the authority of county judges and justices of the peace to settle bills of exceptions was not so restricted by statute. The legislature will doubtless afford relief should its attention be called to the subject. The decisions alluded to are decisive of this case. The district court erred in refusing to strike the bill of exceptions from the files, and in reversing the order of the county court overruling the motion to dissolve the attachment. The judgment of the court below is reversed, and the order of the county court sustaining the attachment is affirmed.

Judgment accordingly.