Glass v. Zutavern , 43 Neb. 334 ( 1895 )

Post, J.

This was an action in the district court for Johnson county to recover for the conversion of a stock of drugs and druggists’ fixtures. The plaintiff below, who is also-plaintiff in this court, claimed through James R. Glass, her husband, under a chattel mortgage to secure an alleged indebtedness to her, while the defendant Zutavern, as sheriff, and the other defendants, as attaching creditors, claimed through certain orders of attachment issued in actions commenced by them against the said James R. Glass. There was a verdict and judgment for the defendants, from which the plaintiff has prosecuted proceedings in error in this court.

The first of the alleged errors is that the district court erred in modifying two instructions asked by the plaintiff. The modifications complained of consist in the addition to a paragraph evidently intended as a statement of the facts essential to entitle the plaintiff to recover, the proposition that the jury must be satisfied that the plaintiff’s mortgage was in good faith for a sufficient consideration and not for the purpose of defrauding the creditors of the mortgagor. There was no error in the action assigned. Indeed, the instructions as submitted failed to state the law applicable to the case on trial, and to have given them in the form presented would have been prejudicial error. It had been clearly shown that the effect of the mortgage of the plaintiff from her husband was to defeat the creditors of the latter, and to prevent them from realizing on their claims against him. It was, therefore, presumptively fraudulent, and the burden was upon the plaintiff to prove the contrary, hence the direction that she must affirmatively ■establish her good faith was rightly given.

It is next complained that the court erred in giving instructions 1, 2, 3, 4, and 5 asked by the defendants, and 1, 2, 3, 4, 5, and 6 on its own motion. This method of assigning errors, it has been frequently held, is insufficient, provided any of the instructions complained of correctly state the law and it is conceded that some of them do in this case. It is next argued that the court erred in refusing instructions 5 and 10 asked by the plaintiff. But the first named instruction is not contained in the record while we find no exception to the refusal of the other, if indeed it was refused which is not clear from the record.

The only other assignment is that the evidence does not sustain the judgment. But that question cannot be considered in the absence of a bill of exceptions properly authenticated. The only pretense of an observance of the statutory requirements for the settlement and allowance of exceptions is a certificate of the clerk to the effect that “the foregoing is all the evidence given or offered, with the rulings and exceptions thereon,” etc. It is only in the exceptional cases enumerated in sec. 311, Civil Code, that the clerk is authorized to allow and sign the exceptions. (Scott v. Spencer, 42 Neb., 632, and cases cited.) The certificate of the clerk being without authority, it follows that the question of the sufficiency of the evidence is not presented to this court. The judgment of the district court must therefore be

Affirmed.