Livingston v. Coe.

Griggs & Ashby, for plaintiff in error, contended that the attachment could not properly be issued, there being no petition filed which complied with the provisions of section 92 of the code. Alexander v. Pringle, 27 Miss., 358. Pitkins v. Boyd, 4 G. Greene, 255. The attachment is void not running in the name of "The People of the State of Nebraska." Curtis v. McCullogh, 3 Nev., 202. Reddick v. Clouds, 2 Gilm., 670. Cady v. Huntington, 1 N. H., 139.

J. B. Skinner and S. C. B. Dean, for defendant in error, said the court below had full power to permit the amendment to be made to the petition and writ, and cited section 144 of the code. Isley v. Harris, 10 Wis., 95. Furman v. Walters, 13 How. Pr., 350. Morgan v. Johnson, 15 Texas, 368.

LAKE, CH. J.

This is a petition in error from Thayer county. The case presents but a single question for our decision.

Although presented in a variety of forms there is really but a single objection in this record to the action. of the district court, which was its refusal to dissolve the attachment and release the property upon which it had been levied. There were two motions to quash the order of attachment filed, the first one on the twenty-first day of May, 1873, which was overruled on the twelfth day of June, next following, and the second, filed June 10th, 1874, which on motion was stricken from the files of the court.

This last named motion was properly stricken from the files. It is a wholesome rule of practice not to entertain a second motion, where one for the same purpose has already been heard and overruled, unless leave to file it has been specially given. All of the reasons existing at the time of filing the first motion showing that it

Livingston v. Coe.

ought to be sustained, save that of want of jurisdiction, should be included therein, and thus be brought to the attention of the court, or they may be treated as waived. Where however there has been an omission to do so through mere inadvertence, or want of knowledge of the existence of a material fact, and there is a desire for a ruling on the matter omitted, the proper course to pursue is, first to obtain leave to file a new motion, in which it may be included, and the court requested to consider it. The granting of such leave is a matter resting entirely in the discretion of the court to which the application is addressed. This leaves us with the first motion only to deal with. It was objected by this motion:

First. "That no petition had been filed as required by law." This objection was based solely upon the fact that the name of the court at the head of the petition was given as the "Supreme Court of the state of New York." This was good ground for a motion to require the plaintiff to amend his petition, but it was not sufficient to warrant a dissolution of the attachment. But even if the mistake in the name of the court had been fatal, it ought to have been more specifically stated; the objection was too general. Wilson v. Wetmore, 1 Hill., 216.

Second. It was objected "that the affidavit upon which the order of attachment issued does not describe the nature of the plaintiff's claim." This assignment is untrue in fact. The affidavit upon which the order issued, set forth "that the plaintiff's claim in this action is upon a promissory note, set forth and described in the complaint in this cause." This was a sufficient description of the cause of action in the affidavit.

Third. And it was further objected, that "said order of attachment is not made returnable according to law." The order itself shows that it was returnable on the second Monday after it was issued. This was correct. The order was issued at the commencement of the action.

Williams v. Lowe.

In such case the return day must be the same as that of a summons (Sec. 203, Code), which is the second Monday after its date. Sec. 66, Code of Civil Procedure.

There were several other objections but they were not urged upon the argument, and it is not worth the while to notice them, as they are clearly frivolous. The chief objection, and the one pressed more strongly upon our attention than any other, was that the order of attachment did not run, "In the name of the People of the State of Nebraska." This point was not made in the first motion, but was in the second. While the order was clearly defective in this respect, it was not fatally so. It was merely voidable, not void. It was a defect curable by amendment. State v. Bryant, 5 Ind., 192. And it makes no difference that the omission is of a constitutional requirement, this as well as one that is statutory, merely, may be amended. See, Illsley v. Harris, 10 Wis., 95, which is a case in point.

We discover no error in this record, and the several orders of the district court are therefore affirmed.

JUDGMENT ACCORDINGLY.

JESSE WILLIAMS, APPELLEE, V. ENOS LOWE AND WILLIAM W. LOWE, APPELLANTS.

1. Trusts: BY PAROL. An alleged parol agreement whereby shares of stock in a ferry company, sold under a decretal order and purchased by the defendant, were to be held in trust to secure the payment of the purchase money and a debt due from plaintiff, and upon payment thereof to reconvey the shares to plaintiff, accounting for dividends received, held not established by evidence of plaintiff, consisting merely of what he had heard that defendant had said, and his understanding of what defendant would do; nor by subsequent declarations of defendant that he expected plaintiff would have the benefit of the stock; nor by proof that defendant had, a number of years after the purchase, paid money to plaintiff from time to time, the plaintiff asking therefor on

Williams v. Lowe,

account of his want of pecuniary means, and never claiming the shares until he had been paid a considerable amount.

2. Pleading: CAUSES OF ACTION: MISJOINDER. A petition contained two counts, one alleging that certain shares of stock, owned by the plaintiff, were purchased at judical sale by the defendant under a parol agreement that defendant should hold the shares in trust and reconvey the same upon payment of a debt due him from plaintiff; and the other alleging want of jurisdiction in the court making such sale, but that defendant under color thereof procured the transfer of the shares on the books of the company, and received dividends thereon in trust for plaintiff. Held, not bad by reason of misjoinder.

3. Equity: JURISDICTION: VOid sale. An assessment was levied upon shares of stock in a ferry company, and suit in chancery commenced to subject the shares to the payment of such assessment, although the charter of the company gave it no authority so to do. Service was made by publication, the bill taken pro confesso; decree rendered, and the shares sold. Held. 1. That the decree was coram non judice, and void, 2. That the purchaser having procured title to the shares under color of said proceedings, receiving dividends thereon, held the same in trust for the original owner.

4. Removal of Causes to U. S. Court. Upon a motion to transfer a cause to U. S. Circuit Court, under act of March 3, 1875, second session, forty-third Congress, held, that the act applies to causes brought in state courts of original jurisdiction, and not to causes pending in the state supreme court.

THIS was an appeal from a decree rendered by Hon. Samuel Maxwell sitting in the district court for Douglas county. It was an action to compel an account, and for the redemption of four shares of stock in the Council Bluffs and Nebraska Ferry Company held by the defendants. The finding in the court below was in favor of the plaintiff, an account stated by a referee, and a final decree rendered against the defendants for $7,532.42.

All the material facts necessary to an understanding of the case appear in the opinion.

E. Wakely and J. M. Woolworth, for the appellants, after an elaborate review of the evidence, contended that it was necessary to the plaintiff's case that he should allege and prove that a consideration of some sort passed between him and the appellants, whether

Williams v. Lowe.

are open to attack on account of the defects in the judi cial proceedings, then by the most unconscionable device we have been deprived of our constitutional right of trial by jury.

George W. Doane and A. J. Poppleton, for appellees.

I. The plaintiff claims that this sale passed no title whatever to the purchaser, for the following reasons, to-wit:

That the court acquired no jurisdiction to render any decree by reason that this was not a case which authorized constructive service under the laws and rules of court then in force. (See Rule I, in equity and title 4, Civil Code.)

No jurisdiction could be acquired except by virtue of the specific lien claimed in the bill, and there was no such lien. Angell and Ames on Corp., Sec. 355. Sargent v. Franklin Insurance Company, 8 Pick., 90.

II. If the sale carried no title to the shares, then they were held by the defendant, Enos Lowe, under an arrangement made between him and the plaintiff in 1863, just before the plaintiff left for Nevada, as a pledge merely, for the security for the balance due to Dr. Lowe, upon his bank account with Henn, Williams, Hooten & Co.; and when the purpose for which the pledge was delivered has been accomplished, the pledgor is entitled to a return and re-assignment of the thing pledged, together with an account of the increase or accumulation of the pledge.

1. Shares in stock of an incorporated company, are subjects of pledge. Wilson v. Little, 2 N. Y., 443. Story on Bailments, Sec. 290.

2. A pledge may be implied from circumstances, as well as arise by express agreement, and may be for a