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Federal Reserve Bank of St. Louis
6/4-Ade
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Federal Reserve Bank of St. Louis
General Number 26879.
IN THE
Supreme Court of Nebraska
DAVID F. JUNGLES AND STELLA B. JUNGLES,
APPELLANTS,
V.
THE STATE BANK OF RAVENNA, A CORPORATION, APPELLEE.
APPEAL FROM THE DISTRICT COURT OF BUFFALO COUNTY.
Hon. B. 0. Hostetler, Judge.
BRIEF OF APPELLANTS.
L. MINOR,
/ B. J. CUNNINGHAM,
Attorneys for Appellants.
WEICESSER-BRINKMAN CO., Law Briefs, Lincoln, Neb.
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
General Number 26879.
IN THE
Supreme Court of Nebraska
DAVID F. JUNGLES AND STELLA B. JUNGLES,
APPELLANTS,
V.
THE STATE BANK OF RAVENNA, A CORPORATION, APPELLEE.
APPEAL FROM THE DISTRICT COURT OF BUFFALO COUNTY.
Hon. B. 0. Hostetler, Judge.
BRIEF OF APPELLANTS.
W. L. MINOR,
B. J. CUNNINGHAM,
Attorneys for Appellants.
STATEMENT OF THE CASE.
This case was commenced in the District Court of
Buffalo County, Nebraska, and before the trial of the
ease had been completed a stipulation was entered into
by the appellants, who will hereafter be referred to as
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2
the defendants, and the appellee which will hereafter
be referred to as the plaintiff. The stipulation, which was
somewhat incomplete, was reduced to writing and is
contained in the bill of exceptions. The decree of the
court was based upon the stipulation and the decree,
while being dated September 28, 1927, was filed October
25, 1927. The dceree was prepared by plaintiff's attorney
and was not signed by the district judge.
The decree was based upon the stipulation entered
into and was rendered in favor of the plaintiff and
against the defendants decreeing the foreclosure of the
mortgages sued upon granting to the defendants, the
right to redeem the property foreclosed, and providing
that a certain note, in favor of C. N. Davenport, which
was in dispute, in the sum of $5900.00 should be cancelled, and that a certain claim which the defendant,
Stella B. Jungles, held against the plaintiff should be
cancelled and waived, that a deficiency judgment against
the defendants on said foreclosure, should be waived
and with the provision that the defendants should remain in possession of the premises as leasees until redeemed, or until March 1, 1929. The case was tried
to the district judge and decree entered accordingly.
The Pleadings.
On June 22, 1928, a supplemental petition was filed
by the plaintiff requesting that the decree be corrected
with reference to the amount found due from 3433.50
to $6777.00 on one of the mortgages as to a certain tract
of land included in the mortgage. The supplemental
petition further requested that a receiver be appointed
to take possession of the premises and that said receiver
be ordered and directed to convey the premises on March
1, 1929. The answer of the defendants to the supple-
es
3
mental petition was filed setting forth that the decree
was not in accordance with the stipulation, and contained a general denial.
On October 11, 1928, trial was had on the supplemental petition and judgment was entered by the court
in favor of the plaintiff in accordance with the prayer
of the supplemental petition.
The original petition, answer and reply are not shown
in the transcript but the incomplete stipulation is shown
in the bill of exceptions and the amended decree and
orders appointing a receiver, etc., are shown in the
transcript.
Errors Relied on for Reversal.
eik
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Federal Reserve Bank of St. Louis
1. The court erred in granting the prayer of the supplemental petition and entering an amended decree for
the reason that the supplemental petition is based on a
motion and notice to correct the decree, as to the amount
found due under paragraph 5 of the original decree, and
the supplemental petition is not based upon, nor in accordance, with the original stipulation.
34 C. J. 240.
Barnes v. Hale, 44 Neb. 355, 62 N. W. 1063.
Meade Numbing Co. v. Irwin, 77 Neb. 385,
109 N. W. 391.
2. The court erred in appointing a receiver and ordering said receiver to take possession of the crops and
premises for the reason that no statutory notice was
given defendants, and that the court was without authority to appoint a receiver in a proceeding upon an
application to correct a decree, rendered at a former
term of court.
Secs. 8755, 8758, 8762, Comp. Stat. 1922.
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McCormick v. Stires, 68 Neb. 432, 94 N. W.
629.
Girard Trust Co. v. Null, 97 Neb. 324, 149 N. W.
809.
34 C. J. 249.
3. The court erred by inserting in the decree "that
Stella B. Jungles has waived any claim * * * against the
plaintiff or atvy of its officers or employees by reason of
the application of $6800.00 * * *" (p. 5 of Trans.),
in lieu of the provision, in the stipulation, which
was as follows: "Stella B. Jungles hereby waives any
claim that she may have against the plaintiff by reason
of the application of $6800.00, etc.," for the reason that
it deprives Stella B. Jungles of a claim which she has
against the officers and employees of said bank and
which has not been adjudicated.
The Evidence.
The evidence in connection with the case is brief and
the same will be discussed in connection with the argument.
THE ARGUMENT.
The transcript of this case shows that the trial was
had on the 28th day of September, 1927; that the decree was not approved by the attorneys for the defendants, but that some correspondence was had with reference to changes; that the attorneys for the plaintiff
tiled said decree on the 25th of October, 1927, without
having submitted the same to the district judge for his
signature. No further proceedings were had in the
case until the 28th of June, 1928, which was after the
September, 1927 term of court had adjourned, and also
after the January, 1928, term of district court had
adjourned.
5
The supplemental petition was filed on June 28, 1928,
and the principal object of the same appeared to be the
11.
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correction of an alleged mistake with reference to the
amount found due in paragraph 5 of the decree. In
addition, however, the plaintiff requested the appointment of a receiver and requested that an order be entered authorizing the receiver to collect the rents, etc.,
and to convey the land on March 1, 1929. This request
of the order resulting therefrom is clearly in violation
of the stipulation agreed upon by the parties in the
case (see Exhibit "One," p. 5, B. of Ex.). The said
stipulation provides that the defendants should remain
in possession of said premises until March 1, 1929, on
a rental basis of one-third of the crop delivered to
market, one-half of the hay and alfalfa crop, and $1.00
per acre for the pasture land. The stipulation clearly
covered the conditions under which said premises would
be occupied by the defendants; also the decree dated
September 28, 1927, also covered the stipulations as to
the lease and the said decree also provided "that said
defendants shall forthwith execute and deliver a good
and sufficient deed conveying said premises to the plaintiff or its assigns and that in default thereof by the
said defendants this decree shall operate as a ooniveyonce of said premises absolutely to the said State Bank
of Ravenna or its assigns." Under the original decree
and stipulation no provision was made for the appointment of a receiver and there was no necessity of the
appointment of a receiver. The receiver, after being
appointed, submitted to the defendants a lease which
defendants refused to sign by reason of conditions being
inserted in said lease which were not a part of the
original stipulation or decree. The said lease contained
the provision that said farm should be cultivated under
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the supervision of the party of the first part or its authorized agents (see p. 23 of the Trans.).
The above provision was no part of the original decree
or stipulation. The said lease was tendered in July,
1928, after the crops had been planted and the defendants should not have been required to submit to the
supervision of the receiver as to the manner in which
said land should be farmed. The lease also contains
the conditions (see p. 24, B. of Ex.) which would have
forfeited all rights of the defendants, had any of the
conditions of the lease been unfulfilled and the receiver
was thereby given the power to cancel the lease in the
event that he should decide that the lease was not being
complied with according to the terms thereof, or under
the terms that might be imposed under his supervision.
The said receiver has even gone so far as to serve notice
for the defendants to vacate said premises under date
of August 31, 1928 (see p. 24 of Trans.), the notice
being the usual three days notice given the tenant.
The defendants submit that they should not have been
subject to ouster proceedings from the above described
premises until March 1, 1929, unless there was some
good cause shown or some provision in the stipulation
or decree rendered by the court. It was not required
by the court that they enter into a written lease or
that they submit to the supervision of the plaintiff or
of a receiver and no receiver was appointed at the
time the decree was entered.
On October 6, 1928, an order was entered directing
the sheriff to place the receiver in possession of said
premises and that a writ of assistance was issued by
the clerk of the court. There is no evidence in the
case but what the defendants were farming the prem.
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ises in a good workmanlike manner. No rent was to
be paid until October 1, 1928, and no division of the
crop was to be made until the same was harvested.
The defendants, it is true, had not executed a deed to
the premises but the decree contanied a provision
that in event of their failure to do so that the
decree would stand as a conveyance and by reason
thereof the decree was in no way violated by reason of
the defendants having failed to execute a deed. This
brings us to the question as to whether or not there is
any reason for the defendants having failed to execute
the deed and in connection therewith the attention of
the court is called to a variation in the terms of the
decree rendered from the terms of the stipulation agreed
upon by the parties. The last paragraph of the stipulation contains the following provision:
"It is further stipulated that in consideration of
the foregoing stipulation the defendant Stella J.
Jungles hereby waives any claim that she may
have against the plaintiff by reason of the application of $6800.00 of money claimed by her to the
payment of the debts of her husband David F.
Jungles in about the mnoth of February, 1922"
(see p. 7, B. of Ex.).
The last paragraph of the decree contains the following provisions:
"2. That in satisfaction of this decree the defendants * * * and that Stella B. Jungles has
waived any claim that she may have against the
plaintiff or any of its officers or employees by reason of the application of $6800.00, money claimed
by her, to the payment of debts of her husband,
David F. Jungles, in about the month of February,
1922; that in consideration of the foregoing, plain.
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tiff waives deficiency judgment against the defendants" (see p. 4 of Trans.).
The court will note that in the stipulation the defendant, Stella B. Jungles, waived any claim which
she had against the plaintiff by reason of the application of $6800.00 of money claimed by her, to the payment of the debts of her husband, etc. When the decree
was written by plaintiff's attorney, the provision was
made to cover any claims which the defendant, Stella
B. Jungles, had against the plaintiff, a corporation,
and in addition thereto any of its officers or employees.
This would prevent Stella B. Jungles from enforcing
any claims which she might have had against the officers
or employes of said bank and such waiver or release
was never contemplated by the plaintiff or the defendants at the time the stipulation was entered into. The evidence which was taken at the original trial of the issues
in this case is not before the court and the reason of
plaintiff's desire for the release as to the officers or
employes cannot be here stated. However, the officers
of the plaintiff bank are not parties to this suit nor
were they parties to the original suit; and, therefore,
any claims which Stella B. Jungles may have against
the officers of the State Bank of Ravenna or against the
employes of said bank should not be litigated or determined in this case, and the stipulation contained no
waiver whatsoever as against said officers or employes
of said plaintiff bank. The claim which Stella B. Jungles
has against said officers or employes would necessarily
be against them personally and if she waived her claim
as against the bank no recovery could be had against
said bank in any future action for her claims against
the officers and employes were never waived. But an
attempt is made to extend the scope of the waiver as
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9
against said bank so that it would include the officers
and employes thereof. For this reason the deeds were
not executed by the defendants. The defendants point
out that there is a variation in the terms and provisions
of said decree when compared with the stipulation shown
at page 7 of the transcript. The decree which was
drawn by Mr. McDonald and shown on pages 31 to 37,
bill of exceptions, was not approved by the attorneys
for the defendants and was not signed by the judge but
was filed with the clerk as shown by page 31, bill of
exceptions, October 25, 1927. Defendants, in the meantime, were not apprised of any amendments necessary
in the decree and relying upon said decree being in
accordance with the stipulation entered into, had no
knowledge that said decree would provide that Stella B.
Jungles, defendant, waived her claim against the officers
and employes of the bank. No objection was made to
the decree until June 22, 1928, which was the third term
of the district court after the trial of the case. Defendants, therefor, submit that the court erred in rendering a decree wherein Stella B. Jungles is prevented
from any recovery from the officers or employes of the
plaintiff bank, as any claim which she may have against
the officers or employes of said bank could not be litigated without having made said employes or officers of
said bank parties to this suit.
Defendants further contend that the court erred in
appointing a receiver, as the stipulation in the decree
included all of the conditions under which the premises
described should be operated until March 1, 1929.
Defendants further contend that the court erred in
ordering the receiver to take charge of any part of the
crops growing upon said premises and in ordering said
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receiver to convey said property as all of said orders
were in violation of the stipulation and decree rendered
in the case.
Defendants, therefore, respectfully state the dceree of
the district court should be reversed for the reasons
above assigned.
Respectfully submitted,
W. L. MINOR,
B. J. CUNNINGHAM,
Attorneys for Appellants.
r
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Federal Reserve Bank of St. Louis
F
L
MAY 20 1929
General Number 26879.
IN THE
Supreme Court of Nebraska
STATE BANN OF RAVENNA, A CORPORATION,
APPELLEE,
V.
DAVID P. JUNGLES ANI) NTELLA B. JUNGLES,
APPELLANTS,
APPEAL FROM THE DISTRICT COURT OF BUFFALO COUNTY.
Brill)0 O. Hostetler, Judge.
BRIEF OF APPELLEE.
N. P. McDoNALD,
Attorney for Appellee.
WBSESIBER-BBINKHAN 00., Law Briefs, Lincoln, Neb.
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Return Within 30 Days
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•
Federal Reserve Bank of St. Louis
General Number 26879.
IN THE
Supreme Court of Nebraska
STATE BANK OF RAVENNA, A CORPORATION,
APPELLEE,
V.
DAVID F. JUNGLES AND STELLA B. JUNGLES,
APPELLANTS,
APPEAL FROM THE DISTRICT COURT OF BUFFALO COUNTY.
Bruno 0. Hostetler, Judge.
BRIEF OF APPELLEE.
N. P. MCDONALD,
Attorney for Appellee.
STATEMENT.
This is an action on a supplemental petition in an
action pending in the District Court of Buffalo County,
Nebraska, wherein the State Bank of Ravenna was
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plaintiff and David F. Jungles and Stella B. Jungles
were defendants. The object and prayer of the supplemental petition was to correct the decree that had
been entered in said cause prior thereto, to have a
receiver appointed to take possession and control of the
property involved in the case and to have a master
commissioner appointed to carry into effect the decre of
the court theretofore entered by conveying to the plaintiff the property involved in the case. Trial was had
and decree entered, in accordance with the prayer of
the supplemental petition. Defendants Jungles, appeal
to this court from the decree of the supplemental petition.
Issues.
This original action was for the foreclosure of mortgages on several tracts of land. During the trial
considerable evidence was taken, and finally a stipulation was made by the, parties in open court and
decree rendered on September 28, 1927, and shown at
page 1 of the transcript. Afterwards and on June
22, 1928, a supplemental petition was filed in said cause
by the plaintiff, the object and prayer of which was:
1. To correct the amount found due in the decree
as in one cause of action in the petition;
2. To have a receiver appointed immediately to take
possession and control of the property involved in the
case, a,nd
I.
3. To have a master commissioner appointed to carry
out the decree theretofore entered in said cause by conveying the property involved to the plaintiff (pp. 5 to 12,
Trans.).
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A hearing for the appointment of a receiver was had
on July 9, 1928, and a receiver was appointed by the
court and he was ordered to take immediate possession
of the real estate involved, manage, control and lease
the same (Tr. pp. 17 to 19).
Answer was filed by the defendants to the supplemental petition on September 24, 1928. In the answer
it is alleged:
1. That a stipulation was agreed on by the plaintiff
and defendants at the trial of the cause on September
28, 1928, but that it was agreed that the stipulation
should be submitted to the defendants by the plaintiff
and that it should be signed and executed by both of
the parties, which was not done.
2. That at the trial it was agreed a decree should
be prepared in accordance with the stipulation; that
the decree, which was prepared by the attorney for
the plaintiff, was not in accordance with the stipulation; was not consented to by defendants or their
attorney; that the same was filed in court without having been submitted to the judge and without the consent of the defendants or their attorney; that the
decree does not conform to the stipulation; that the
decree is void because it was not signed by the court;
that the decree is at variance with the conditions of
the stipulation.
The prayer of the answer is that the supplemental
petition be dismissed; that the decree be stricken from
the files; that the costs be taxed to the plaintiff, and
the defendants have equitable relief (Trans. pp. 26 and
27).
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The reply is a general denial of the allegation of
the answer (Trans. pp. 26 to 28).
Trial was had and decree entered on October 11,
1928, in which the court found that the matter of correcting the decree, as set forth in paragraph 1 of
the supplemental petition, had theretofore been corrected on motion; that the allegations of plaintiff's supplemental petition were true; excepting that no finding was made as to the insolvency of David F. Jungles;
that Frank Skochdopole had theretofore been appointed receiver of the property involved in the action; that
the defendants had failed and refused to convey the
property involved in the action to the plaintiff, in
accordance with the stipulation of the parties made in
open court and the decree theretofore entered in said
action; that Frank Skochdopole, who was the receiver,
be appointed master commissioner and authorized and
directed to convey the real estate involved in the action
to the plaintiff on March 1, 1929, because the defendants had failed and refused to convey said real estate
to the plaintiff, in accordance with the stipulation in
the trial of the original case and the decree entered
therein. From this decree the defendants have appealed to this court (Tr. pp. 32 to 34).
Answer To Errors Alleged.
1. The supplemental petition was not based upon
any motion as to the amount due the plaintiff under
paragraph 5 of the original decree, but is in accordance with the original stipulation and decree and is
based thereon.
2. There was no error in appointing a receiver to
take charge of the premises involved in the case be-
4.
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cause statutory notice was given, as required by law,
and the court had full power and authority to appoint a receiver in this case.
3. The third error assigned by the appellant goes
to the original decree. No appeal has been taken from
the original decree, which was entered September 28,
1927, and no motion has been made or action taken
in any manner to modify or correct in any particular
said decree (pp. 1 to 5 of the Tr.).
Evidence.
The evidence is brief and the material parts thereof
will be referred to in the argument herein.
PROPOSITIONS OF LAW.
When a decree is entered conforming to the agreement and consent made in open court of all the parties
to the action, the court having jurisdiction to enter
such decree, then no party to the decree, nor one
claiming under such party, can be heard to question it,
except for fraud or mistake, even though the pleadings
would not support the decree had the action been contested.
Clark v. Charles, 55 Neb. 202.
Wallace v. Goldberg, 72 Mont. 234, 231 Pac.
56. .
Schoren v. Schoren, 110 Ore. 272, 222 Pac. 1096.
Schmidt v. Oregon Gold Mining Co., 28 Ore. 9,
40 Pac. 406.
Bancroft Code Practice, Vol. 3, Sec. 1786 to
1790.
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It is the duty of the clerk of the district court to
prepare journal entries of judgments and decrees and
record them. When judicial acts or other proceedings
of any court have been regularly brought up and
recorded by the clerk thereof, and upon examination
found correct, the presiding judge of said court shall
subscribe the same.
Compiled Statutes 1922, Sec. 8956.
The decree would be valid though not signed by the
judge.
Ga2lentine v. Cummings, 2 (Unof.) Neb. 690.
Scott v. Rohm.an, 43 Neb. 618.
Real property may be conveyed by master commissioners when by an order or judgment in an action or a
proceeding a party is ordered to convey such property to
another and he shall neglect or refuse to comply with
such order or judgment.
Comp. Statutes 1922, Section 8960.
IV.
A receiver may be appointed by the district court after
judgment or decree to carry the same into execution,
or to dispose of the property according to the decree
or judgment.
Comp. Statutes 1922, Section 8754.
ARGUMENT.
This was an action to foreclose several mortgages
executed by appellants to the appellee. Trial was
had on September 28, 1927, on the petition of the
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plaintiff, the answer of the defendants, the reply thereto,
the evidence and the stipulation of the parties, as alleged in the supplemental petition herein, on which
this appeal is taken, in paragraph 2 thereof (Tr. pp. 6
and 7), which the court finds is true in the decree
thereon (Tr. p. 32, par. 2). After taking evidence a
stipulation was made and entered into by the parties
in open court, which stipulation is in the bill of exceptions, page 5. A journal entry was prepared by the
attorney for the plaintiff and filed in the office of the
clerk of the district court and entered in the complete
record in said cause, which decree was approved by the
judge of said court, as shown by said complete record
(B. of Ex. pp. 6 to 15). The approval of the decree
as entered on the record is made by the judge of said
court on page 15, bill of exceptions.
In this decree the court finds the amount due on
the several mortgages set forth in plaintiff's petition and
adjudged the same to be valid liens on the respective
mortgaged premises and ordered several tracts of real
estate to be sold to satisfy the amount found due. In
said decree (B. of Ex. p. 12, par. 9) the court further
finds:
"That it is stipulated by the parties in open
court that all of said premises as above described,
shall be conveyed by the defendants, David F.
Jungles and Stella B. Jungles, his wife, to the
plaintiff, or its assigns, immediately by good and
sufficient deed of conveyance, and that the title to
said premises shall vest absolutely in the said
grantee."
There is further provision in the decree that the
defendants, appellants herein, should have the right
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to purchase any of said tracts by paying to the plaintiff
the amount found due on its mortgage lien thereon,
and they should have the right to lease said real estate
described in said mortgages from the plaintiff, the appellee herein, for a term ending March 1, 1929.
It is alleged in the supplemental petition filed in the
court below on June 22, 1928, that the defendants
therein had failed and refused to convey said real estate
to the plaintiff, as provided in said decree; that they
had failed and refused to lease said premises from
the plaintiff and had failed and refused to surrender possession thereof to the plaintiff, and had failed and refused
to perform the terms and conditions provided for them to
be performed in said decree. The purpose of said supplemental petition was to have a receiver appointed
to collect the rents and profits, manage said estate
until the conveyance of said real estate should be made
to the plaintiff, and to appoint a master commissioner to carry into effect the decree of the court by
a conveyance of said real estate to the plaintiff by
said master commissioner, which could not be done
until March 1, 1929, at which time the defendants'
right to purchase said real estate or any part thereof
expired by the terms of the original decree.
It is contended by the appellants that the proceedings
under the supplemental petition are erroneous because
those proceedings were based upon the original decree,
which they contend is void for two reasons:
1st. The decree is not in conformity with the stipulation of the parties in open court.
We shall not take the time or space in this brief to
show that the decree is in conformity with the evidence
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and the stipulation in that case. The stipulation is
found on page 5, bill of exceptions, and the court may
determine from the reading of the stipulation as to
whether or not it supports the decree.
The decree is not such a decree as would have been entered under the pleadings, but the parties always have
the right to make agreements during the progress of
the trial of a case for the disposition thereof. This
court has held:
"When a decree is entered conforming to the
agreement and consent made in open court of all
the parties to the action, the court having jurisdiction to enter such decree, then no party to the
decree, nor one claiming under such party, can be
heard to question it, except for fraud or mistake,
even though the pleadings would not support the
decree had the action been contested."
Clark v. Charles, 55 Neb. 202.
Wallace V. Goldberg, 72 Mont. 234, 231 Pac.
56.
Schmidt v. Oregon. Gold Mining Co., 28 Ore. 9,
40 Pac. 406.
Bancroft Code Practice, Vol. 3, Sec. 1786 to
1790.
Sehoren v. Schoren, 110 Ore. 272, 222 Pac.
1096.
This stipulation was greatly to the advantage of the
defendants in that it provided that the defendants
might purchase back any of this land by paying the
amount of the mortgage lien thereon with the low rate
of interest of 6 per cent during a time much longer than
this period of stay of execution under the statute, and
a practical cancellation of a note made by the defendant
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David F. Jungles to C. N. Davenport, by the agreement of R.'M. Thomson, cashier of the plaintiff bank,
to hold said defendants harmless from any liability on
said promissory note, and the waiving of all deficiency
judgments against the defendants, since the land is
adjudged to be of less value than the amount of the
mortgage thereon, as alleged in the supplemental petition (Tr. p. 11) and determined by the order appointing the receiver (Tr. p. 17) and the decree on said
supplemental petition (Tr. p. 32). This stipulation
was taken in shorthand by the court reporter, transcribed by him during the trial, and a copy given to the
plaintiff and the defendants, and it was expressly
assented to and participated in by the defendants at
the time it was made and with their full knowledge and
consent (B. of Ex., pp. 3 and 4). There can be no
reason why the defendants should not carry out the
decree in good faith.
2. It is next contended by the appellants that the
original decree is void because it was not approved
by the attorney for the defendants and signed by the
court. It is true the journal entry was prepared by
the attorney for the plaintiff. A copy of that journal
entry was submitted to the attorney for the defendants.
See testimony of N. P. McDonald (pp. 39 to 45), especially copy of a letter inclosing stipulation to Mr. Cunningham (Exhibit 4, p. 41), an original letter from
Mr. Cunningham to Mr. McDonald (Exhibit 5, p. 43),
in which he acknowledges receipt of the copy of the
decree as drafted, and says that "Mr. and Mrs. Jungles
were in today and there were a few changes they desired to have made which I do not think are very important, but upon which they insist," and specifies only
one thing and that was to have returned the Davenport
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note, which Mr. Thomson, as cashier of the bank, agreed
to protect them on. There is no substantial objection
to the decree as prepared and as filed with the clerk .of
the district court and by him entered in the complete
record, which complete record was approved and signed
by the judge of that court (B. of Ex., p. 15).
There is no requirement of the statute or of the law
that a decree or journal entry prepared by an attorney
of record shall either be approved by the attorney on
the other side or the instrument itself signed by the
judge of the court. All the statute does require is that
when the judicial acts or other proceedings of any court
have been regularly brought up and recorded by the
clerk thereof, and upon examination found correct, the
presiding judge of such court shall subscribe the same.
Comp. Stat. 1922, Sec. 8956.
If the decree was in any manner incorrect or not in
accordance with the facts, the findings of the court or
the law, the defendants had ample opportunity to have
the same corrected or modified. No attempt has been
made in any manner to have said decree changed, corrected or modified in any particular, and the same must
stand as the settled decree in this case.
Master Commissioner.
No complaint is made in appellants' assignment of
errors or in the proceedings under the supplemental petition in this case of the appointment of a master
commissioner to convey the real estate to the plaintiff
on account of the neglect and refusal of the appellants
to convey the real estate to the plaintiff, as provided
in the original decree. In any event, this was a proper
proceeding. Our statute specially provides therefor.
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Section 8960 of the Compiled Statutes for 1922 is as
follows:
"Real property may be conveyed by master commissioners as hereinafter provided: First, when
by an order or judgment in an action or a proceeding a party is ordered to convey such property
to another, and he shall neglect or refuse to comply
with such order or judgment."
In any event, the district court has the power to make
such order as may be necessary to carry into effect its
judgments and decrees.
Receiver.
The second assignment of error by the appellants is
that the court erred in appointing a receiver to take
possession of the property, and contend that under the
original decree the Jungles were entitled to the possession of the real estate. The attorney for the appellants has evidently overlooked the provisions of the
stipulation and the decree. In the stipulation it is
agreed (B. of Ex., p. 6), and in the decree it is found
and adjudged (p. 14, Tr. pp. 3 and 5), "That the plaintiff shall have possession of said premises on March 1,
1928." It is true that the decree provided that the
Jungles might lease the real estate from the plaintiff
after they had conveyed the real estate to the plaintiff.
They failed and refused to convey the real estate, and
failed and refused to enter into a lease of the real
estate from the plaintiff or surrender possession to it.
Mr. Thomson, cashier of the bank (p. 16), testifies
that the Jungles have failed to convey the land to the
plaintiff and that the bank employed W. T. Eckerson for
that purpose (B. of Ex., p. 1(1).
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Mr. Eckerson testifies in this case that in June, 1928,
he had a conversation with David F. Jungles and his
wife about conveying the land involved in the case to
the State Bank of Ravenna; that he went to them
with a deed (B. of Ex. p. 21, Exhibit 2), and a lease
and told the Jungles that he had a deed and some leases
for them to sign, some papers that were involved in the
case, and talked to them about it and they said "No,
they wouldn't sign anything." They would not sign
the deed and would not sign the lease. They said they
would not sign anything (B. of Ex., pp. 18 and 19).
Frank Skochdopole testified in this case that he was
the receiver appointed by the court in this case; that
he went to Mr. and Mrs. Jungles about making a lease
on the land and he offered to lease it to them and they
refused and would not sign the lease which he had with
him at the time, and said they would not sign anything. On cross-examination he said that they would
not sign anything for him as receiver or any other man;
they would not sign anything and they would not do
anything (B. of Ex., pp. 23 to 25).
There is nothing in the record that the appellants
objected to the lease offered to them or that it was not
in accordance with the terms of the original decree.
They simply refused to do anything, either to convey
the property or to lease the same from the plaintiff.
They refused to perform the decree of the court in conveying the property or leasing the same, but insisted
on remaining in possession. In order that the decree
of the court might be carried into effect, it was necessary to have a receiver appointed. Section 8754 of the
Compiled Statutes for 1922 provides as follows:
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"A receiver may be appointed by the supreme
court or the district court or by the judge of either
in the following cases: Third. After judgment or
decree to carry the same into execution or to dispose of the property according to the decree or
judgment or to preserve it during the pendency of
an appeal."
That is just exactly what was done in this case. In
the order appointing the receiver, the interests of the
Jungles were carefully protected in this matter by providing, "Said receiver shall have power and authority
to lease said real estate to David F. Jungles and Stella
B. Jungles, or either of them, for a term ending March
1, 1929, for a rental basis of one-third of the grain and
corn crop and one-half of the hay and alfalfa crop
raised on said premises, to be delivered by the lessor
at the nearest market without expense to the lessee,
under the usual terms of leases made in that vicinity
for similar real estate, and $1.00 per acre for the pasture
land on any of said premises, to be paid in cash on
the 1st day of October, 1928" (Tr. p. 19). This order
was entered on June 30, 1928. The appellants persisted in ignoring the order of the court to convey said
real estate to the plaintiff, or lease the same from the
plaintiff, or surrender possession thereof to the plaintiff
or the receiver, even until the trial under the supplemental petition, on September 6, 1928.
There was nothing for the court to do but to appoint
a receiver to take possession of the property, and a
master commissioner to convey it to the plaintiff, or
submit to its orders and decrees being entirely ignored
by the appellants.
Objection is made that the appointment of the receiver
was without sufficient notice. The supplemental tran-
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15
script shows that motion for the appointment of the
receiver and notice of hearing thereon was served on
the defendants David F. Jungles and Stella B. Jungles
on June 23, 1928, giving notice of hearing on the motion
on June 30, 1928. The order appointing the receiver
(Tr. p. 17) recites that on June 30, 1928, the application
for the appointment of the receiver was continued by
consent of parties to July 7, 1928, and on said date by
agreement of the parties, said cause was continued to
Monday, July 9, 1928, at 10 o'clock A. M., and on that
date the receiver was appointed. There is absolutely
nothing in the contention of the defendants that the
receiver was appointed without legal notice. No objection was ever made, either at the time the receiver was
appointed, or in the answer of the defendants to the
supplemental petition, or at the trial, that the receiver
was appointed without due notice.
From the foregoing it must be apparent that the appointment of the receiver was not only a proper proceeding, but was absolutely necessary in order to protect
the rights of the plaintiff and enforce the decree of
the court.
Miscellaneous.
In the argument in appellants' brief complaint is
made of various matters contained in the original decree,
and which are not at all involved in any manner in this
proceeding under the supplemental petition. One of the
things mentioned is that concerning $6800 applied to
the payment of obligations of her husband, David F.
Jungles, to the bank. She was contending that it was
so applied without her consent, but that fact was not in
issue in the case. In order that the controversies between the plaintiff and the defendants might be fully
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16
adjusted and settled, the stipulation in open court was
made and it was there agreed that R. M. Thomson,
cashier of plaintiff bank, would save and keep the defendants harmless from any and all liability on two
certain promissory notes made by the defendant David
F. Jungles to C. N. Davenport, amounting in the aggregate to about $5900, and interest thereon; that there
should be no deficiency judgment and all deficiency
judgments are waived; and "it is further stipulated that
in consideration of the foregoing stipulation, the defendant Stella B. Jungles hereby waives any claim that she
may have against the plaintiff by reason of the application of $6800 of money claimed by her to payment of
the debts of her husband, David F. Jungles, in about
the month of February, 1922" (B. of Ex., p. 7). On
this stipulation findings were made and judgment entered by the court, in accordance therewith (B. of Ex.,
pp. 13 and 15). The complaints are all made about
things that are adjudicated in the original decree, from
which no appeal was taken and no effort made to
correct or modify. As a matter of fact, the original
decree is not subject to attack for any irregularity. We
call special attention to the fact that these criticisms
made by the appellants have no reference to the findings
or decree under the supplemental petition, from which
alone appeal has been taken in this case. The third
assignment of error, as made by appellants, therefore
must fall.
CONCLUSION.
From the foregoing we must conclude that the court
had jurisdiction of the subject matter under the supplemental petition; that the appointment of master
commissioner to convey the real estate involved to the
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17
plaintiff was within the powers and duties of the court;
that the appointment of the receiver was a proper proceeding and necessary to protect the interests of the
plaintiff, and to carry into effect the decree of the court;
that the other matters complained of in appellants' brief
are not in issue in this case. We therefore ask that the
decree of the court below be affirmed.
Respectfully submitted,
N. P. McDONALD,
Attorney for Appellee.
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29083
In The
Supreme Court of Nebraska
EX REL, ('. A. SORENSEN,
OF NEBRASKA,
STATE ATTORNEY
GENERAL,
PLAINTIFF,
V.
THE STATE BANK OF RAVENNA, DEFENDANT,
DAVID F. JTTNGLES,
INTERVEN1R AND
APPELLANT,
RECEIVER OF THE STATE BANK
E. H.OFLITIKART,
RAVENNA,
NEBRASKA,
DEFENDANTRAVENNA,
AND APPELLEE.
APPEAL FROM THE DISTRICT COURT OF BUFFALO COUNTY.
Hon. Bruno 0. Hostetler, .Judge.
BRIEF OF APPELLANT.
I/LLOYD KELLY,
Attorney for Appellant.
WE10ESSER-BRINKMAN CO., Law Briefs, Lincoln. Neb.
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Federal Reserve Bank of St. Louis
General Number 29083.
In The
Supreme Court of Nebraska
STATE OF NEBRASKA, EX REL, C. A. SORENSEN,
ATTORNEY GENERAL, PLAINTIFF,
V.
THE STATE BANK OF RAVENNA, DEFENDANT,
DAVID F. JTINCrLES, INTERVENOR AND
APPELLANT,
E. H. LITIKART, RECEIVER OF THE STATE BANK
OF RAVENNA, RAVENNA, NEBRASKA,
DEFENDANT AND APPELLEE.
APPEAL FROM THE DISTRICT COURT OF BUFFALO CADUNTY.
Hon. Bruno 0. Hostetler, Judge.
BRIEF OF APPELLANT.
LLOYD KELLY,
Attorney for Appellant.
STATEMENT OF THE CASE.
Nature of the Case.
Appellant brought this suit as an intervenor, against
the State Bank of Ravenna and against E. H. Luikart,
as receiver of said bank, in order to object to the
classification of his claim against the bank as invalid.
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2
From a judgment dismissing the case, the intervenor
appeals the case to this court.
The Issues.
The appellant, in his petition of intervention, objected
to the classification of his claim as invalid, alleging
that between the dates of February 2_:1731. 1919 and
May 31st 1923 he executeh certain listed promissory
notes in favor of the bank, which he delivered to the
bank and which the bank received and agreed to give
the appellant credit for the notes and deposit the
proceeds to the appellant's credit. The appellant further
alleged that the State Rank of Ravenna, and its officers
and agents, wrongfully and fraudulently accepted the
notes, but failed and refused to give credit; that the
bank appropriated the proceeds of the notes for the
use of the bank; that such was done wrongfully and
fraudulently without authority; that the officers and
agents represented to appellant that he had been given
credit on the notes; that two notes for five thousand
dollars each were obtained fraudulently, taken into the
bank, the proceeds deposited to the credit of officers
and other customers of the bank, and that the bank
refused to credit the appellant, and that the appellant
was compelled to pay the notes with interest. Appellant further alleges that three notes for five thousand
dollars each were similarly appropriated by the bank
and its officers, wrongfully and fraudulently; and
that other notes were treated similarly; and that appellant was forced to pay such note. The appellant
then alleged the acts of the bank to be illegal, unlawful,
and without his knowledge, consent or authority; further
alleged demand on the bank, its officers and its receiver, and refusal of payment; and prayed for relief,
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that the sum of $65,500.92 with interest from the date
of the petition be decreed a preferred claim against
the bank. Attached to the petition is an exhibit listing all notes referred to in the petition (Trans. pp.
2-5).
The State Bank of Ravenna, through its receiver,
E. H. Luikart, answered the petition of intervention
by a general denial, praying dismissal of the case and
asking affirmance of the classification of appellant's
claim as invalid (Trans. p. 6).
Later, on the 22nd day of September, 1933, the appellant moved the court for a continuance of 30 days
for the reason that appellant's counsel had withdrawn
from the case and that insufficient time remained in
which to prepare for trial. This motion was supported
by affidavits given by Mr. Kelly, present attorney for
appellant, by Dr. E. E. Farnsworth, physician for Mr.
Hannon, by Mr. Hannon himself; all affidavits being
to the effect that the serious illness with tuberculosis
of Mr. Hannon made it an impossibility for him to
bring the case to trial on the date named. Also
attached to it a copy of a letter from Mr. Hannon to
Mr. Radke of the state receivership division, written
eleven days before trial, asking for more time for some
other attorney to prepare for trial, since he would be
unable to do so himself (Trans. pp. 8-15).
Findings and Judgment.
On the 22nd day of September, 1933, this matter
came to trial, and after presentation of the application for a continuance, with a counter-showing by the
receiver, the court found that the application for a
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4
continuance was made merely for dilatory purposes
and not in good faith. Accordingly, the case was called
for trial, the intervenor failed to appear, and the court
dismissed the petition of intervention at appellant's
costs (Trans. p. 16).
A motion for a change of venue was denied also as
having been filed out of time (Trans. 7, 16 [these two
pages misplaced in the transcript each in the place
of the other]).
On the 10th day of October, 1933, appellant made
an application to set aside the dismissal on grounds
that appellant had no opportunity to present affidavits
on his behalf on the facts set forth by the countershowing filed by the receiver of the bank (Trans. pp.
11-15, 17), that the intervenor had no attorney to
represent him in such a showing, and that the court
was not fully advised of the facts by the affidavit of
Barlow Nye. In support of this motion, appellant submitted affidavits of Edward F. Hannon, together with
three exhibits which were letters written to intervenor
and Mr. Radke concerning the necessity for a continuance due to Hannon's illness, etc., of B. J. Cunningham, and of intervenor David F. Jungles (Trans.
pp. 18-32). To this application to set aside the dismissal of the petition of intervention of appellant, a
counter-showing was made by file receiver of the Rate
Bank of Ravenna, through its attorney, in the form
of affidavits by Fred A. Nye and F. M. McGrew, together with correspondence between the parties given
as exhibits (Trans. pp. 33-39).
Accordingly, the appellant appeals to this court.
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Errors Relied Upon for Reversal.
1. The court erred in dismissing appellant's petition of intervention.
2. The court erred in not granting the application
of the appellant to set aside the dismissal of the petition of intervention.
PROPOSITIONS OF LAW AND AUTHORITIES
RELIED UPON FOR REVERSAL.
I.
Granting or refusing a continuance rests in the discretion of the court; and reversible error can be predicated
upon an abuse of the sound legal discretion of the trial
court.
20-1148, Compiled Statutes, 1929, Nebraska.
Richelieu v. U. P. R. Co., 97 Neb. 360, 149
N. W. 772.
Johnson v. Dinsmore, 11 Neb. 391, 9 N. W.
558.
Stratton V. Dale, 45 Neb. 472, 63 N. W. 875.
Burris v. Court, 48 Neb. 179, 66 N. W. 1131.
City of Lincoln V. Lincoln Street R. Co., 75
Neb. 523, 106 N. W. 320.
Kramer v. Weingand, 88 Neb. 392, 129 N. W.
543.
Armour & Co. V. Kollmeyer, 161 Fed. 78, 88 C.
C. A. 248, 16 L. R. A. (N. S.) 1110.
Cox v. Hart, 145 U. S. 376, 12 S. Ct. 962, 36
L. Ed. 741.
Spencer v. Lapsley, 15 L. Ed. 902.
Copper River Mining Co. V. McClellan, 138 Fed.
333, 70 C. C. A. 623 (Cert. denied, 200 U.
S. 616).
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Dexter v. Kellas, 113 Fed. 48, 51 C. C. A. 35.
Texas, etc. R. Co. v. Humble, 97 Fed. 837, 38
C. C. A. 502.
Baker v. Langan, 165 Iowa 346, 145 N. W.
513.
Roney v. Healy, 170 Mich. 46, 135 N. W. 959.
Bernth v. Smith, 112 Minn. 72, 127 N. W.
427.
McDonald v. McAaister, 32 Neb. 514, 49 N.
W. 377.
Paine v. Aldrich, 133 N. Y. 544, 30 N. E. 725.
Pollack v. Jordan, 22 N. D. 132, 132 N. W.
1000, Ann. Cas. 1914A 1264.
Crouch v. Dakota, etc. R. Co., 18 SI. D. 540,
101 N. W. 722.
McMahon V. Snyder, 117 Wis. 463, 94 N. W.
351.
6 R. C. L. 544-5.
13 C. J. 125.
4 C. J. 808-9.
The withdrawal of the principal counsel from a case on
account of illness, leaving no counsel sufficiently familiar
with the case to carry it to trial, and leaving insufficient
time for new counsel to acquaint themselves with the case
before time of trial, is good ground for a continuance;
and a refusal to grant a continuance in such a case is
reversible error.
Rhode Island v. Massachusetts, 11 Pet. 226, 9
L. Ed. 697.
Rumford Chemical Works v. Hecker, 20 F. Cas.
No. 12131.
Shultz v. Moore, 22 F. Cas. No. 12825.
7
Turner v. Loomis, 146 Ia. 655, 125 N. W. 662.
Frey v. Shadbolt Mfg. Co., 145 N. Y. S. 48.
Kramer v. Heins, 34 N. D. 507, 158 N. W. 1061.
Rice v. Melendy, 36 Ia. 166.
American Soda Fountain (7o. v. neon Drug Co.,
(Ia.) 111 N. W. 134.
13 C. J. 134, 145, 148.
6 R. C. L. 554).
ARGUMENT.
The court erred in refusing the continuance and in
dismissing the petition of intervention.
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This case was set for trial on the 22nd day of September, 1933, at an equity term of court before the
Hon. Bruno 0. Hostetler in the district court of Buffalo
County. Prior to this time, Mr. Edward F. Hannon,
of Grand Island, was the attorney retained by the
appellant. On the 16th of September, he notified the
appellant that the disease from which he was sufferitig
had caused his physical condition to become sufficiently
worse, that it was imperative for him to stop his practice and move to another climate, and that he was accordingly withdrawing from the case (Trans. p. 9).
This attorney had gone over the audits, interviewed
the witnesses, carried on the negotiations for settlement which were made—in general, had done all of
the material work in preparing for trial. It is a
matter which would appear to call for nothing but the
most. ordinary form of common sense that the appellant could not retain other counsel who could familiarize
themselves sufficiently with the rather complex features
of this case to enable them to go to trial on the matter. Six days only separated the letter of withdrawal
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8
by Mr. Hannon, and the time of the trial. At least
one of these days would be lost through passage of the
mails. If either the trial court or opposing counsel
could have placed themselves in the position which
must have been assumed by new counsel had the case
gone to trial—i. e., preparing for an intricate banking
case which even the auditors and accountants who
worked on the books were not able to completely grasp—
they would have seen that the refusal of the continuance would work a real injustice and constitute an
abuse of discretion.
When the case was called on the 22nd day of September, 1933, counsel, which appellant had retained for
the purpose of handling this motion, appeared and asked
for a continuance, the motion was supported by an
affidavit by Mr. Kelly, attorney, with offices in the same
building with Mr. Hannon, who stated that the physical
condition of Mr. Hannon made a change of climates
a necessity and the discontinuance of his business imperative; by an affidavit by Dr. E. E. Farnsworth of
the Grand Island Clinic stating that Mr. Hannon's
physical condition required a discontinuance of his
practice and his removal to another climate; by two
letters from Mr. Hannon, one to the appellant dated
September the 16th, informing him that he must withdraw from the case, and one dated September the
11th, informing Mr. Radke of the receivership division
of the Department of Trade and Commerce, and Mr.
Nye of Kearney, one of counsel for appellee, that he
would be unable to try the case on the 22nd (Trans.
pp. 8-10). The court received the motion for a continuance, heard a counter-showing by the appellee in
the form of an affidavit by Barlow Nye, one of counsel
for appellee, and then decreed that the application for
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9
a continuance should not be allowed as made merely
for dilatory intrposes and not in good faith. The court
then called the case for trial. Counsel for appellant,
who presented the application for a continuance, was
retained solely for this purpose and was unable to
try the case. Accordingly, the appellant was unable
to appear and prosecute his claim. The court then
decreed that the petition of intervention of appellant
be dismissed at his costs (Trans. p. 16 [misplaced between 10 and 11]). At a later date in the same term
of court, the appellant moved the court to *set aside
the decree of dismissal, giving reasons, and supported
by affidavits by Mr. Hannon, by Mr. Cunningham,
attorney, of Grand Island, by Mr. Jungles, the appellant in this cause, and by numerous pieces of correspondence which passed between Mr. Hannon and counsel for appellee (Trans. pp. 17-32).
It is apparent from the above statements that the
questions involved in this appeal will be few and welldefined. A lengthy argument would be as useless as
it would be ill-advised. Having only the transcript
of the case
• recor.
•
I &,.":
I •
I I
I Le
tisal
the parties and counsel, and the court's decree, this
court could get as clear an understanding of the case
as would be necessary by reading little other than this
record itself. The few points of conflict are thrown
into relief by affidavits of parties.
Section 20-1148 of the Compiled Statutes of Nebraska
for 1929, governs the granting or refusal of continuances. The appellant complied with the requirements
of that section in making a written motion for the
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10
continuance, by setting forth the grounds on which
the motion was based, which in this case was the forced
withdrawal of his counsel with insufficient time for
preparation of new counsel before time set for trial,
by offering affidavits in support of the motion made
by persons competent to testify as witnesses and by
persons acquainted with the facts upon which the
motion was based. After stating these requirements,
which were complied with, the statute reads:
"m The court may, upon the hearing, in its
discretion, grant or refuse such application; and
no reversal of such cause or proceeding by the
supreme court shall be had on account of the action of the court in granting or refusing such application, except when there has been an abuse
of a sound legal discretion, therein by the court."
The part of the statute quoted is in accord with the
overwhelming weight of authority, and support for it
could be found in every jurisdiction. It leaves no
doubt on the question that in Nebraska "an abuse of
a sound legal discretion" must be shown to warrant
the reversal of a case.
In the Nebraska case of Richelieu v. Union Pac.
R. Co., 97 Neb. 360, 149 N. W. 772, the district court
refused to allow the defendant a continuance, which
prevented the presentation of a defense. The grounds
for the continuance differ between the cited case and
the instant case, but we find the following language
used by this court in reversing the case on grounds
of an abuse of discretion by the district court, the
quotation itself being taken from the case of Johnson
v. Dinsmore, 11 Neb. 391, 9 N. W. 558:
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"It is said that an application for a continuance is addressed to the sound discretion of the
court, and that its action thereon cannot be reviewed. But this is stating the rule too broadly.
The object of the law is to administer justice, and
where it clearly appears from all the facts and
circumstances in the case that there has been
an abuse of discretion, operating to the prejudice
of the party in the final determination of the case,
the court, in a proper case, will grant a new trial.
If it were not so, a party might be entirely defeated in this cause of action or defense for the
lack of material testimony, which a continuance
would enable him to procure."
It is the contention of the appellant that the district court in the instant case did not exercise a sound
discretion in its consideration of appellant's motion
for a continuance, and that the denial of the same
constituted an abuse of discretion sufficient to warrant the reversal of the case. There is no question
but that the seriousness of Mr. Hannon's illness justified. the course of action which he took. Mr. Hannon
was in such a critical stage of tuberculosis that a
failure to remove to a higher and dryer climate would
endanger his life. Here, then, we have notice being
given to the appellant on the 16th day of September,
six days prior to the time the case was supposed to
be called, of two factors—illness of counsel and .withdrawal from the case of counsel. Either or both have
been considered as sufficiently good cause for granting a continuance (13 Corpus Juris, 133-4, 145, with
numerous citations). That counsel employed is too
ill to try the ease is almost always considered good
grounds for a continuance (Rhode Islam!. v. Massachusetts, 9 L. Ed. 697; Turner v. Loomis, 146 Ia. 655, 155
12
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N. W. 662). The condition is added sometimes, though
infrequently, that the applicant for a continuance
must show that he has a meritorious action. The
holding of Cornett V. Tuck, 104 Neb. 759, 178 N. W.
612, Is along that line. That the appellant did have
a meritorious action would appear to be true from the
mere fact that the correspondence between counsel
discloses that at one time appellant offered to compromise for $30,000.00 (Trans. p. 29); that Mr. Radke,
general counsel for the receivership division of the
Department of Trade and Commerce, offered to settle by
allowing the appellant a general claim for $10,000.00
(Trans. p. 31); and that this offer was rejected by
appellant (Trans. p. 32).
That this particular counsel (Mr. Hannon) was necessary to the proper presentation of the case is shown
by his own affidavit that from December, 1931, until
the 16th day of September, 1933, he was counsel for
appellant, and handled all negotions and acts in connection with the case (Trans. p. 18). On this score,
counsel for appellee attempted in their counter-showing on the motion for a continuance to becloud the
issue and give the impression that a host of attorneys
had successively taken and dropped the case, or refused to consider taking it. This is obviously unfair,
and even if it had been true, should not have been
allowed to prejudice the rights of the appellant in
his attempt to seek justice. An example of the fallaciousness of this argument is shown by the fact that
Barlow Nye, in his affidavit, states that Butler &
James of Cambridge, Nebraska, were among the "many
counsel" employed by appellant (Trans. p. 11). Mr.
James, of that firm, in a letter to Nye and Nye, both
among counsel for appellee, states that they were re-
41
13
tamed "to make an examination of the books of the
State Bank of Ravenna, and this was as far as
our participation in the case was arranged for." Why
counsel for appellee saw fit to make those statements,
with their necessary inference, we do not see. Further,
Mr. Jungles, intervenor and appellant, by affidavit
states that "he did not employ Robert P. Starr as attorney in the above case, nor W. L. Minor in this
case" (Trans. p. 26).
That there was not sufficient time or opportunity
to employ other counsel to conduct the case by the
22nd day of September, and to allow such counsel
time to prepare for trial, should be a matter of common knowledge to the judiciary and to the profession,
when one considers that this case involved an investigation and an audit of a defunct bank whose
records were in notoriously bad shape. Mr. Hannon
withdrew on Saturday, September the 16th. At best,
if appellant could have obtained counsel instantly upon
receiving that letter, but four days would have remained. Mr. Hannon, by sworn affidavit, stated on
this matter:
0
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"* * *; that in order to prepare for the trial
of said case it was necessary to go over the records
in said bank and that it would require several
weeks time to do so and that the said David F.
Jungles could not possibly prepare his evidence
and make the examinations necessary for the trial
of said case by the 22nd day of September; * * *
that by using due diligence the said David F.
Jungles could not obtain the evidence which would
be necessary to present in support of his claim by
the 22nd of September, that affiant believes that
a continuance should have been granted; that said
14
continuance was not requested for the purpose of
delay but that the same was caused by affiant's
physical condition which necessitated his withdrawing from said case and giving up his law
practice in Grand Island; * * *2)
It would not be error to deny a motion for a continuance because of the absence or illness of an attorney, if the party making the motion is represented
at the trial by other competent counsel fa/maiair with
his case. So holds First National Bank of Omaha v.
Dye, 73 Neb. 300, 102 N. W. 614. In the instant case,
appellant did not have other counsel familiar with the
case. Error was committed by the trial court in refusing the continuance. The prejudice resulting to appellant is obvious.
Mr. Barlow Nye, in his affidavit presented against
the motion for a continuance further stated that the
appellant had had Walker and Faulk, accountants,
prepare a complete audit of the books, and that such
audit showed that appellant had no cause of action,
and that hence, appellant's attorneys had stated that
they did not expect to use this audit (Trans. p. 13).
This is true, but as given by Mr. Nye it is an unwarranted statement as being only a partial disclosure of
fact. Mr. Cunningham, by affidavit, states that "at
one time an audit was made by Walker and Faulk, but
that said audit was not a complete audit and said
audit covered the items listed in case number 11609
in the District Court of Buffalo County, Nebraska;
that at the time of the dismissal of said case, the
auditors informed the affiant and David F. Jungles
that a shortage had been discovered in the funds of
the said David F. Jungles to the extent of two $5000.00
notes and between $3500.00 and $5000.00 shortage
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MIL
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15
could be shown by further investigation, constituting
a total shortage of from $13,500.00 to $15,000.00."
With an audit failing to show this much, it is understandable that it would not be used without additional
work being done; and with no time in which to do
it, a continuance was but the more imperative (Trans.
p. 23). By affidavit, Mr. Drake, employed by appellant to examine the books of the bank, states that the
audit made formerly by Walker & Faulk "contained
matters and records which in many respects were not
contained upon the records of the bank, and affiant
found that many notes were traced upon the records
of the bank in a far different manner than shown upon
that audit, and affiant believes that the audit mentioned was made from records of personal records in
the possession of the said David F. Jungles, from oral
representations and statements of other persons and
from other sources than the actual bank records in
many respects, and affiant came to the conclusion and
informed David F. Jungles that if proof were made
from the records of the bank only that his claim would
be supported upon his petition of intervention more
substantially in many respects than by any sort of
attempt to follow the use of that audit mode by "Walker
and Faulk" (Trans. p. 42). From this, one can understand why appellant and his attorney were not going
to use this audit. The truth of the matter places
Nye's statement in a much different light than it stood
while offered against the motion for a continuance.
Furthermore, Emma M. Bengtson made a partial examination of the bank's records, and according to her
affidavit found irregularities in the transactions of David
F. Jungles which would require a complete audit to
clear up (Trans. p. 43).
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16
The court stated in the journal entry on September
22nd that the application for a continuance was made
merely for dilatory purposes and not in good faith,
and accordingly called the case for trial. This was the
first time that this case had been set for trial, and
accordingly the court necessarily must have been (1)
prejudiced against the case, the appellant or his attorney, or (2) have been influenced by some of the statements in Mr. Nye's affidavit against the motion for
a continuance, many of the statements in which have
been shown to he either erroneous or misleading. We
have no reason to believe that the court was prejudiced
in any manner. We rather wish to believe that the
court was led into an erroneous ruling by the second
method above set out. The continuance was made for
"dilatory purposes and not in good faith." What can
the court mean by this statement? Would it deny that
Mr. Hannon was seriously and dangerously ill, and that
he could not continue with the case or try the cause?
Surely, there is no bad faith involved by the forced
withdrawal of one dangerously diseased with tuberculosis. In the same way, Mr. Hannon did not arrange
this physical disability in order to delay the cause.
There can only be one possible reason for the court
thinking that the grounds given were substantiated,
and that would be that it thought there was sufficient
time during the six days between the time Mr. Hannon
wrote his withdrawal and the time when the cause was
to be tried. The unsatisfactory audits which had been
had, the fact that Mr. Hannon alone had handled the
material transactions of the case for over a year and
a half, should suffice to show this contention invalid.
Further discussion on this point has been given ante.
44."
7
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17
On the question of the continuance being desired for
dilatory purposes, see a letter written by Mr. Hannon
to Mr. Radke on September 11th. Mr. Hannon stated
in part: "If it cannot be settled, the Jungles are
anxious that it be tried at an early date for there is
no object in delaying it further, however, they would
probably want more time than the 22nd of this month
to get a new attorney" (Trans. p. 21). There is no
indication here of an attempted or desired delay.
Nor can the appellee claim that they were surprised
by the motion for a continuance. Parts of Mr. Hannon's
affidavits and correspondence have already been quoted.
On this same matter, let us examine a portion of Mr.
Cunningham's affidavit in support of the application
to set aside the dismissal:
"Affiant further states that he informed the said
Barlow Nye and F. C. Radke that the said David
F. Jungles would not be ready for trial on the
22nd and informed them that they should notify
witnesses so as to avoid the expense, and requested
that a continuance of two weeks be granted in
order that the said David F. Jungles might be
prepared for trial ;"
and further that
"that the said F. C. Radke instructed the said
David F. Jungles to make an application for continuance and make a showing that Edward F.
Hannon was ill and could not try said case and
that he, F. C. Radke felt sure that the District
Judge at Kearney would be fair in deciding the
matter of a continuance under said circumstances,
and the said David F. Jungles was directed at said
time by F. C. Radke to go to Kearney and make
application for continuance" (Trans. pp: 24-5).
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1
18
According to the same affidavit, Mr. Radke communicated with Barlow Nye, but that Mr. Nye refused to agree
to a continuance because his father, who was handling
the case at Kearney would witlutraw from the ease if
a coainnance was granted (Trans. p. 24). This shows
that conditions, as they stood with appellant and his
attorney-to-be were known to counsel for appellee.
Nor can any lack of diligence be claimed. Mr.
Jungles could not have anticipated Mr. Hannon's forced
withdrawal from the cause. Indeed, he could not even
have learned of it until the 18th, which would leave
him only four days in which to retain new counsel,
and for them to acquaint themselves with the case.
And the fact that the case has been pending for
several terms is of itself no ground for refusing to
grant a continuance.
6 R. C. L. 548.
74 Am. Dec. 142.
Hooper v. Memphis, etc. Steamboat Co., 19
Ga. 85.
Marrero v. Nunez:3 La. Ann. 54.
The general rule on the whole question of continuances is generally stated to be that the grant or
refusal of a continuance is a discretionary power.
However, it is equally true, that. this discretion is to
be exercised in a sound and legal manner, and not
arbitrarily or capriciously (6 R. C. L. 546; 4 C. J. 809;
74 Am. Dec. 141-2). It is submitted that the action
of the court in refusing the continuance and in dismissing the cause was based upon insufficient knowledge of the facts, or upon prejudice which would show
his decree at least to be arbitrary and without just
cause.
19
-r
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Federal Reserve Bank of St. Louis
Counsel for appellee stated in affidavit that appellant
had made an effort to settle the litigation "for a comparatively small sum of money" (Trans. p. 13). This
is, again, obviously an attempt to convey the impression that the appellant's cause was without merit. As
a counter-offer, counsel for appellee wanted to settle
the case by allowing appellant a general claim of
$10,000.00. Counsel for appellee may regard this a
"small sum" of money. The lowest that appellant
offered to settle for was $30,000.00. This would appear
to be but another example of the way in which the
court was misled by the counter-showing against the
motion for a continuance made by appellee.
It is submitted that the appellant, without fault,
without a lack of due diligence, in good faith, without
attempting or desiring a delay, has been deprived of
a right to establish his claim and to obtain justice.
His motion for a continuance was presented in proper
form, supported by sworn affidavits of Mr. Hannon's
physician and others. Mr. Hannon's condition as stated
in the motion and the affidavits was pitifully bona fide.
At no point in the case do we see either a "dilatory
purpose" or a hick of "good faith," either on the part
of Mr. Jungles, the appellant, or on the part of his
attorney. It is sincerely maintained that this case
presents a situation which demands a reversal because
of the court's abuse of a sound legal discretion.
In accordance with above views, we pray that this
court cause the case to be reversed and remanded to
stand trial at the next term of court in Buffalo County.
Respectfully submitted,
LLOYD KELLY,
Attorney for Appellant.
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29083
In The
Supreme Court of Nebraska
sTATE
N E ItASKA.. EX REL.( A. SORENSEN,
A'1"I'OR NEY (I EN ERA
VS.
THE STATE RANK OF' RA V EN NA,
Defendant:
DA VII) P. .1 ITN(41,ES,
Iii terve act'
Ippellan1 ;
E. II. 1.1711ART, ECE I VER ()1.' T II E STATE R.\
OF RA V EN NA, HA VEN NA, NEBRASI.A,
Defrndant and .tpindlec.
APPEAL FRON1 THE DISTRI("I' COURT OF PO 'FF:11,0
Fl ON. 1110' N
)sTETI.ER. In(Ige
'NT
BRIEF OF APPELLEE
.1.kmE4 L. BROWN,
ERE!) A. NY E,
FRANZ C. IL\IE,
11.\ R1,0\\* NYE,
.I ttorneyx for
RIGHTF.R'S, LAW BRIEF PRINTERS, 130 North Fourteenth Street, Lincoln, Nehr
K
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Federal Reserve Bank of St. Louis
INDEX
Page
Statement of the Case
2
Nature
2
The Issues on the Intervention
3
Petition in Intervention
3
Answer of Receiver
4
The Issues on this Appeal
How the Issues were Decided
4
5
Findings and Judgment of Hon. Bruno 0. Hostetler,
Judge
5
Application to Set Aside Dismissal
6
Asserted Assignments of Error
Statement of the Evidence in the Showings
7
Showing as to the Motion to Postpone
8
Affidavit of Mr. Kelly
Counter-showing on Motion to Postpone
Affidavit of Mr. Barlow Nye
9
9
Showing in Support of Application to Set Aside Dismissal
12
Affidavit of Mr. Hannon
Affidavit of Mr. Cunningham
12
Intervener's Affidavit
16
14
Counter-showing Against Application to Set Aside
18
Dismissal
Affidavit of Mr. Fred A. Nye
19
Affidavit of Assistant Receiver McGrew
19
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INDEX—Continued
Page
Additional Affidavits for Intervener
Affidavit of Mr. Drake
Affidavit of Emma M. Bengtson
Affidavit of Intervener
Narrative of Evidence in the Showings
20
20
21
21
22
Did Intervener have Sufficient Time to Procure
Counsel and Prepare?
22
As to the Time Necessary for Preparation
24
Was Intervener Diligent in Obtaining Evidence?
Did Receiver Promise to Furnish Intervener an
Audit?
24
26
Did Withdrawal Leave Intervener Without an
Attorney Familiar With the Case?
27
Intervener was Represented
29
Delaying Distribution to Bank Depositors
29
Outline of the Jungles-Bank Litigation
30
Propositions of Law
32
Argument
33
Abuse Must Clearly Appear
Effect of Lack of Diligence
The Parallels of Miles and Jungles
Discussion of Intervener's Authorities
Analysis of Cases Cited by Appellant
As to the Application to Set Aside the Dismissal
Conclusion
33
34
40
42
43
46
47
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Federal Reserve Bank of St. Louis
General Number 29083
In The
Supreme Court of Nebraska
STATE OF NEBRASKA, EX REL. C. A. SORENS14114,
ATTORNEY GENERAL,
Plaintiff,
VS.
THE STATE BANK OF RAVENNA,
Defendant;
DAVID F. JUNGLES,
Intervener and Appellant;
E. H. LUIKART, RECEIVER OF THE STATE BANK
OF RAVENNA, RAVENNA, NEBRASKA,
Defendant and Appellee.
APPEAL FROM THE DISTRICT COURT OF BUFFALO COUNTY
HON. BRUNO 0. HOSTETLER, ./Udge
BRIEF OF APPELLEE
JAMES L. BROWN,
FRED A. NYE,
FRANZ C. RADKE,
BARLOW NYE,
ttonseys for A ppellee.
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Federal Reserve Bank of St. Louis
2
STATEMENT OF THE CASE
1. NATURE
Twelve years ago intervener and the bank had business
transactions. Out of them grew the Jungles litigation.
In the litigation there have been four lawsuits in the
Buffalo County District Court in which a total of seven
petitions have been filed by Mr. Jungles. He is the intervener herein. The present intervention is the second
of the lawsuits to reach this court.
This appeal does not relate primarily to the subject
matter of the litigation. It is an appeal by intervener
from a decree dismissing his petition in intervention.
Judge Hostetler dismissed the case when intervener refused to prosecute his claim. Intervener refused to
prosecute when his motion to postpone the trial was
overruled.
His stated ground for a continuance was that his
attorney had withdrawn from the ease and he had not
had sufficient time to obtain another to present the evidence and interview the witnesses.
When the three earlier cases were filed the bank was
a going concern. After it failed in 1931 the subject
matter of the old litigation was filed as a claim as for
a trust fund which the receiver rejected; this intervention followed to establish a preferred claim for $65,500.92
which was resisted by the receiver, who is the appellee
herein.
The issues in the intervention were made up early in
1932 and on September 2, 1933, the case was specially
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3
set for trial on September 22. Intervener claims his
attorney withdrew four days before trial. The trial
court found intervener had had adequate notice and
that the motion to postpone "was for dilatory purposes
and not in good faith."
Intervener now appeals from the judgment entered
when he refused to prosecute his claim. Intervener
appeals upon the theory that denial of his motion to
continue constituted an abuse of sound legal discretion.
2. THE ISSUES ON THE INTERVENTION
a. The Petition in Intervention
Intervener objected to the classification of his claim
as invalid and alleged as follows: That during the years
1919, 20, 21, and 22 he executed certain promissory notes
in favor of the bank, described in an attached exhibit;
the notes were received by the bank which agreed to
give him credit therefor and to deposit the proceeds
thereof to his credit. That the bank, its officers and
agents, fraudulently accepted same, refused to give credit
for the proceeds thereof; fraudulently and without authority appropriated the proceeds for the use of the
bank; represented that intervener had been given credit
for the notes; wrongfully represented to intervener that
three of said notes represented his indebtedness on a
garage transfer of May 3, 1920; that. the bank obtained
above described notes through the garage and other real
estate transactions; that two of said notes fraudulently
obtained were without consideration and the proceeds
thereof were deposited to the credit of officers and customers of the bank which refused to credit any part to
intervener; that intervener paid the notes.
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Federal Reserve Bank of St. Louis
That as to three certain notes the bank wrongfully
appropriated to its own use the proceeds of two of said
notes and refused to credit intervener for said notes and
that intervener paid all of said notes; the bank wrongfully deposited the proceeds of two notes to its use and
benefit and refused to credit intervener with said notes
and that he paid all said notes and by reason of acts
of the bank he was defrauded. That all acts of the bank
were unlawful; that the bank's fraudulent acts were not
discovered by intervener until May, 1931; that he makes
claim for said notes and interest paid and interest; intervener prayed that he he decreed to have a preferred
claim in the sum of $65,50092 and equitable relief.
b. Answer to Petition in Intervention
The receiver denied generally the petition.
3. THE ISSUES ON THIS APPEAL
At the call of the docket of the District Court of
Buffalo County held at the commencement of the September, 1933, term on September 2, 1933, the case was specially set for trial for September 22, at 9 A. M. (14).
On the 22nd the cause came on for trial at 9:40 A. M.
upon the petition of intervention and the answer; intervener, through his attorney, Mr. Oscar A. Drake, presented an application filed the same day (8) for a 30
day continuance alleging "that counsel retained by the
plaintiff has withdrawn from the case and that the plaintiff has not had sufficient time to obtain an attorney to
present the evidence and interview the witnesses necessary for the trial." There was a showing supporting the
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Federal Reserve Bank of St. Louis
5
motion. At 10:20 A. M. the receiver tiled a countershowing against the motion for continuance (11).
At 10:40 A. M. intervener by his attorney, Mr. Herbert
E. Hill, presented a motion (7-16) alleging that he had
reason to believe that Judge Hostetler was prejudiced
"to the rights and interests" of intervener; the motion
asked a postponement of the proceedings and appointment of another judge.
HOW THE ISSUES WERE DECIDED
Judge Hostetler overruled both motions. When the
intervener failed to appear and prosecute his claim the
court dismissed the petition in intervention. The procedure will be made clearer by the court's journal entry
which follows:
The Findings and Judgment
"Be it remembered that on the 22nd day of September, 1933, this matter came on for trial before
the court at 9:40 a. m., upon the petition of intervention of David F. Jungles, and the answer thereto
of the receiver of said bank; the intervener being
represented by Oscar Drake, his attorney, and the
receiver of the State Bank of ltavenna, being represented by Barlow Nye and. Fred A. Nye, his attorneys. The intervener presented an application
for a continuance. The receiver presented a counter
showing. Upon due consideration Of the application for continuance and the counter showing, the
court finds: That notice of the time of trial of this
action was given in writing to the intervener and
his attorneys more than one week prior to this date,
so that the intervener and his attorneys were fully
informed of the time of trial at. this time. Accord-
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6
ingly, the court finds that the application for a.eontinuance is made merely for dilatory purposes and
not in good faith. The court called the case for
trial. The intervener fails to appear and prosecute
his claim, which is the basis of this petition of intervention.
T I 8 THEREFORE CONSIDERED, ADJUDGED AND DECREED BY THE COURT that
the petition of intervention of said David F. Jungles
be and the same is hereby dismissed at his costs. At
10:40 a. m., the intervener presents a motion for
a change of venue, by his attorney, Herbert E.
Upon due consideration of the same, the court finds
that it has been filed out of time and after the case
had already been finally disposed of by the court.'
Accordingly the same is overruled, to which ruling
of the court the intervener excepts. His supersedeas
bond is fixed at $1.000.00."
Application to Set Aside Dismissal
Later, on October 10, 1933, intervener, through his
attorney, Mr. Lloyd W. Kelly, filed an application to set
aside the dismissal for the following reasons (17):
"1. That the said David F. Jungles did not have
an opportunity to present affidavits on his behalf
upon the facts set forth in the counter-showing .filed
by the receiver of the State Bank of Ravenna.
"2. That said intervener did not have any attorney to represent intervener or to present evidence
in opposition to the affidavit of Barlow Nye, tiled
herein.
"3. That the court was not fully advised of the
facts with relation to said case and that the affl-
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Federal Reserve Bank of St. Louis
f
7
divit of Barlow Nye did not set forth the facts
with reference to the notice which was given to the
said Barlow Nye that a continuance of said case
would be requested by the intervener."
The application was supported by a showing.
ASSERTED ASSIGNMENTS OF ERROR
Intervener assigns two alleged errors, namely:
1. The court erred in dismissing appellant's petition
of intervention.
2. The court erred in not granting the application of
the appellant, to set aside the dismissal of the petition
of intervention.
It is assumed that intervener does not intend to press
alleged error No. 2 inasmuch as the transcript does not
disclose that the application to set aside the dismissal
of the petition of intervention has been ruled upon.
Further, as to the motion to dismiss, intervener's brief
does not assert with particularity that the court denied
intervener's attorneys, Mr. Drake and Mr. Hill, an opportunity to present a showing in his behalf in opposition
to the receiver's counter-showing to the motion to dismiss.
STATEMENT OF THE EVIDENCE
IN THE SHOWINGS
Intervener's brief does not attempt to set out all the
important facts and circumstances in the proceedings.
Because he has selected isolated quotations from the
record and fails to tweurately reflect the situation pre-
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Federal Reserve Bank of St. Louis
8
sented to the trial court, appellee must now detail the
evidence in the record.
There was no showing in support of the motion to
appoint another judge, but the showings for and against
the motion for continuance and to set aside the order
of dismissal follow:
As to the Motion to Postpone
Attorney Lloyd W. Kelly deposed (8) that the physical condition of Attorney Hannon required a removal
from this climate and a severance of his connection with
pending matters. Attached to his affidavit are:
('a) A physician's letter stating that Mr. Hannon's
condition requires an abandonment of his professional
duties (9).
(b) Letter dated September 16, 1933, written by Mr.
Hannon to intervener, advising that the attorney could
no longer represent him (9). It also advises intervener
that the attorney was discontinuing his practice "this
week"; also that Mr. Hannon could have notified intervener earlier of his intention to discontinue his practice
but had not done so because he hoped to effect a settlement (9).
(c) Mr. Hannon's letter dated September 11 addressed
to an attorney for the Receivership division. In it Mr.
Hannon states that he will be unable to try the Jungles
case at 9 A. M. September 22; that the Jungles desire
an early trial but would want more time than the 22nd
to get a new attorney (10).
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Federal Reserve Bank of St. Louis
9
Counter Showing on Motion to Postpone
Mr. Barlow Nye, one of the attorneys for the receiver,
deposed upon knowledge and belief as follows:
That intervener bases his cause of action upon transactions with the bank prior to the year 1923. That all
of the causes of .action of the intervener as against the
bank were fully adjudicated in a foreclosure action commenced by the bank against the intervener in 1927 in
the District Court .of Buffalo County wherein notes of
$31,000.00 were involved; intervener then claimed he
was defranded in a real estate transaction involving
$14,000 representing other notes. This case was tried
in September, 1927, and subsequently Jungles appealed
to the Supreme Court of Nebraska. The Supreme Court
confirmed the judgment of the District Court as to the
adjudication of Jungles' rights against the bank growing
out of the transaction. In that case all of intervener's
causes of action against, the bank were fully adjudicated.
In 1928, Mr. Jungles commenced a law suit against
the bank in the District Court of Buffalo County upon
all the causes of action shown in the petition of intervention, together with many others; at least five amended
petitions were filed in that suit before Mr. Jungles dismissed it. He was represented by Mr. Cunningham. Subsequently, in March, 1930, he commenced another suit
which in June, 1931, was dismissed; that among counsel
who have been employed by Mr. ,Tungles are Butler &
James, Cambridge, Nebraska, W. L. Minor, Kearney,
Robert P. Starr of Ravenna, Benjamin F. Cunningham
of Grand Island.
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Federal Reserve Bank of St. Louis
10
The bank tailed in September, 1931. Mr. Jungles filed
a claim as for a trust fund for $99,377.44. The receiver
classified the claim as invalid; the District Court of
Buffalo County confirmed that classification; later, the
petition of intervention was filed, and the case has been
at issue since early in 1932.
At none of the three regular terms of court thereafter
did intervener, through the attorney who filed the petition nor those subsequently employed, attempt to set
the matter for trial; intervener had had a complete
audit of the bank books pertaining to the transaction
prepared by Walker &lk,certified public accountants;
which audit showed that Jungles had no cause of action
against the bank. Attorneys recently employed by
intervener have said they do not expect to use this
audit.
Subsequent to the filing of the petition in intervention
at the instance of intervener's counsel (Mr. Hannon and
Mr. Drake), the receiver gave intervener and an accountant access to the books and records of the bank for the
purpose of preparing for trial; intervener's accountant
was engaged many days in the examination. This audit
intervener does not desire to use.
In May, 1932, Attorney Drake stated he was withdrawing from the case and was so informing intervener.
and further that the health of Mr. Hannon would probably not permit him to try the ease and that he would
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Federal Reserve Bank of St. Louis
11
undoubtedly withdraw. Affiant believed these facts were
made known to intervener.
After the ease was set for trial 'at the commencement
of the September term, local counsel for the receiver
notified intervener of the time and place of hearing and
also notified Mr. Hannon, Mr. Drake, Butler & James,
and all the attorneys who had ever appeared of record
in the cause.
On the 20th day of September, 1933, intervener and
his attorney, Mr. Cunningham, called at the office in Lincoln, of the receiver. Mr. Cunningham stated that he
would never try the case but did try to make some
arrangements for a settlement. The affiant says that
he believes by reason of conversations with various counsel for intervener that Mr. Cunningham is the real counsel for intervener, is still employed by him and expects
compensation in the event of a recovery; that the receiver
was ready for trial. He had brought four witnesses from
distances to attend. Considerable time had been spent
preparing for trial. The receiver had brought to the
courtroom all the books and records of the bank, arranged and indexed to facilitate introduction of evidence.
The receiver had in his hands $25,000.00 which he was
withholding from the depositors pending adjudication
of the rights of intervener. The depositors of the bank
desired a distribution of this fund; many of them were
in dire need of same.
Affiant also stated that if a continuance Is granted
it is his belief that no new counsel will be employed;
and that the intervener has no desire to litigate the
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matters set forth in his petition of intervention.. The
receiver asked for an order dismissing the intervention
for 'want of prosecution.
Showing In Support of Application to
Set Aside Dismissal
The transcript fails to show that the trial court has
ruled on the motion to set aside dismissal and it may
be assumed that intervener is not appealing from any
order with reference to it. However, affidavits filed in
support of the application are brought before this court
by intervener and the receiver desires that the court
have the benefit of any facts therein shown. The showing (18) filed by Mr. Kelly as attorney for intervener
includes the affidavits of intervener, Mr. Hannon and
Mr. Cunningham.
Affidavit of Attorney Hannon
Mr. Hannon states in his affidavit dated September
20 (18), that he filed suit on the claim for Mr. Jungles
(either he or the record errs as the suit on the claim
seems to have been filed by Mr. Cunningham, 4); that
he acted as intervener's attorney from December, 1931,
to September 16, 1933; that he had various conferences
attempting to effect a compromise; that he was informed
a number of times by Attorney Radke of the Receivership Division that an audit would be made of the bank
with reference to the claim; that he and intervener "relied upon said statement of the officers in the banking
department and was willing to have an impartial audit
made of the claim and account"; he urged several times
that a settlement or an audit be had by officers of the
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banking department "in accordance with the promises
of the officers thereof"; that on September 11, he notified
Attorney Radke of the department it would be necessary
for him to withdraw, give up his practice on account
of his health; that he has been afflicted for five years
with tuberculosis; that he is physically unable to prepare for or try a lawsuit and was in that condition when
he advised Mr. Radke; immediately thereafter he was
advised by local attorneys for the receiver that the case
had been set for September 22; that he immediately informed Mr. Radke he was unable to try the case and
that more time would be necessary for the preparation
for trial, and sent a copy to the local attorney; tlo:
sufficient time was not given to obtain counsel or to
prepare for trial; that in order to prepare it was ne:•essary to go over the records in the bank, requiring several
weeks time and that intervener could not prepare his
evidence and make necessary examinations by September 22; that he advised intervener to arrange for other
counsel or to try to arrange for a continuance; that he
was absent from Grand Island from September 18 to 23
and unable to confer with intervener regarding the case
or counsel to represent him; that the case was set down
for hearing without agreement on his part and was set
for trial during the term and without notice excepting
a letter he received from local counsel; that by due diligence intervener could not obtain the necessary evidence
by September 22; that the continuance was not requested
for delay but that same was caused by his physical condition which necessitated his withdrawal and giving up
his practice; that affiant has planned to leave for another
climate but he is delayed by his condition.
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Attached to his affidavit are several letters. One is
dated September 6, 1933. It is addressed to intervener
and informed intervener that Mr. Hannon would quit
the law business within 10 days (that is, by September
16) (20).
Another letter written by Mr. Hannon, dated September 11, 1933, to Mr. Radke, advised that the case was
set for trial on the 22nd and "it would be impossible
for me to try it at that time. As I stated when talking
to you last week, if some adjustment could not be made
soon, I would withdraw for I will not be able to give it
the time that would be required to prepare for trial
before leaving. 1 intend to clean up my business as
soon as possible this week and had not intended to do
anything afterwards. * * * I shall appreciate hearing
from you in ample time that some arrangement can be
made before the 22nd" (21).
Another letter dated September 16th, written by Mr.
Hannon to intervener (22) was in part as follows: "This
is to advise that it will be impossible for me to represent
you further in the above styled matter. It has become
necessary for me to change climates—I am discontinuing
my practice here this week. It has just been the last
two or three weeks that I have definitely decided to make
the change this fall. However, I could have notified you
earlier, but I had hoped that some adjustment could be
made the first part of this month."
Affidavit of Mr. Cunningham
Affiant deposed on October 7, 1933 (23), that he
assisted in filing the intervener's claim but that Mr.
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Hannon was employed by intervener and that affiant
had not acted as attorney in the case since early in
1932; that he knew of the negotiations for settlement;
that no complete audit was made; that an audit waonce made by Walker and Fulk but it was not a complete audit; and covered items listed in case No. 11609:
he was informed by the auditors at the time when said
case was dismissed that "a shortage had been discovered
in the funds of the said David F. Jungles to the extent
of two $5,000.00 notes and between $3,500.00 and $5,000.00 shortage could be shown by further investigation.
constituting a total shortage of from $13,500.00 to $15,000.00."
Affiant says he had no connection with the case from
early 1932 until September 20, 1933; that intervener
requested him to go to Lincoln and "make a request of
F. C. Radke of the Banking Department for a continuance"; that affiant was unable to communicate with Mr.
Hannon who was out of the city and would not return
until September 21 or 22; that affiant and intervener
went to Lincoln to interview the department's attorneys
and told them of Mr. Hannon's physical condition and
that he could not try the ease and that intervener should
have opportunity to obtain further counsel and witnesses
and the evidence necessary for trial; that Mr. Radke
communicated with Mr. Barlow Nye who refused to
agree to a continuance and who said Mr. Fred Nye,
the local counsel, would withdraw if one was granted;
that affiant was engaged in the trial of a ease which
was set for September 22 and could not assist intervener
nor appear with him at Kearney to seek a continuance;
that Mr. Radke informed affiant that he had agreed with
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intervener and Mr. Hannon to have an audit made, but
that in attempting to do so the examiner found the books
in bad shape, some of the records missing, and that he
thought it would be impossible to get a complete audit
without great expense.
Affiant says that he informed Messrs. Nye and Radke
that intervener was not ready for trial and they should
notify witnesses and avoid expense and he "requested
that a continuance of two weeks be granted in order
that David F. Jungles might be prepared for trial"; that
Mr. Radke directed Mr. Jungles to make an application
for a continuance.
Affiant also states that Mr. Hannon did not return to
Grand Island until September 23, and further states
that Mr. Hannon's health made it impossible for the
latter to try or assist in the trial of the case; that the
request for continuance was in good faith.
Explanatory note: The date of the conversation with
Mr. Radke referred to in Mr. Cunningham's affidavit
does not clearly appear therefrom, but it must have been
on September 20. See line 23, p. 28.
Intervener's Affidavit
The intervener deposed on October 7, 1933, "that he
was not present in court at the time of the dismissal of
said case and had no attorney representing him at that
time; that he had engaged Oscar Drake to present a
motion for continuance—" (26); that after the case
was dismissed lie ascertained that a counter-showing had
been filed; he says that he never engaged Butler & James
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to assist "in the trial of the above case," but at one
time employed Mr. James to assist in taking depositions
"in a different and separate case"; that he did not employ R. F. Starr as attorney "in the above case" nor
W. L. Minor "in said ease"; that "subsequent to the
filing of the above entitled case" F. C. Radke, attorney
for the Banking Department "agreed" to have an audit
made which intervener could use upon trial; that he
relied upon this and "repeatedly requested" that an
audit be made; that he was led to believe it would be
made before the case was set; he denied he offered to
settle for a small amount, as Mr. Nye deposed, but
offered to settle on the basis of a general claim of
$30,000.00; this was refused; that subsequently, attorney for the receiver said be believed the matter could
be settled for a general claim of $10,000.00 which intervener rejected (attention is called to the fact that these
slims referred to were to be allowed, not as trust funds,
not as claims for deposit, but as general claims only;
the court will take judicial notice of the fact that a
general claim has little, if any, value); that "he intended to proceed to the trial of said case, but was not
advised that the banking department would not make
an audit of said account in sufficient time to obtain an
audit thereof or to obtain investigation of said bank
records and the evidence necessary for the trial of said
case."
Intervener says that no complete audit was ever made
of his account with the bank and that he was informed
on September 20th that it was "practically impossible"
to make an audit because of the condition of the books;
that his ease appealed to the Supreme Court of this
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state did not involve the questions involved in the instant case.
Affiant says that he did not until September 12, 1933,
receive notice that the case would be set for trial; that
he "immediately attempted to see Mr. Hannon, his attorney, during the week of September 18, but that he
was out of the city"; that be requested Mr. Cunningham
to go to Lincoln and ask the banking department to
agree to a continuance until "he could obtain his evidence or could employ counsel to represent him in the
case."
He corroborates other statements made by Mr. Cunningham and further says that a member of the depositors' committee of the bank informed him that the
committee would recommend the payment to him of
$1,000.00 in settlement of his claim.
Attached to intervener's affidavit is a letter written
by Mr. Hannon in April, 1932, making an offer to compromise (29); and the reply thereto (30); and a letter
written in July, 1932, by Mr. Radke, suggesting that a
compromise might be made on the basis of a general
claim for $10,000.00 (31); and a letter (32) in which
Mr. Hannon said that Mr. and Mrs. Jungles refused to
settle and suggesting that a joint audit be made to
lessen the expense.
COUNTER-SHOWING AGAINST APPLICATION
TO SET ASIDE DISMISSAL
The showing consists of the affidavit of Mr. Fred A.
Nye, local attorney for the receiver, with copies of let-
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ters attached (33-38) and the affidavit of F. M. McGrew,
assistant receiver of the bank (39).
Affidavit of Mr. Fred A. Nye
On September 9, 1933, Mr. Nye, local attorney for the
receiver, mailed letters to Mr. Cunningham, Mr. Hannon,
to Butler & James, advising them that the case was set
for September 22 at 9 A. M. On September 11th he
wrote the same information to Mr. and Mrs. Jungles.
He received a reply from Butler & James, dated September 11, 1933, in which was said that that firm was
not then representing Mrs. Jungles; that the firm had
been retained by Mr. Cunningham to make an examination of the books of the bank, but further participation
by them in the case was not arranged for. That firm
suggested that the receiver's attorney communicate with
Mr. Cunningham.
Mr. Hannon replied to Mr. Nye under date of September 18, 1933, saying that inasmuch as no adjustment
could be made it was necessary for him to withdraw by
reason of discontinuing his practice for the present.
He also wrote that he was "no longer interested in the
litigation."
Affidavit of Assistant Receiver, McGrew
McGrew's affidavit was filed, in which he
Later M
deposes (39) that in the summer of 1933 Mr. Drake.
spent a part of two days examining the records of the
bank. He further says that in 1932 Mrs. Jungles and
Edw. Spevacek, a former bookkeeper of the Citizens
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State Bank of Ravenna, spent four or five days in
The State Dank of Ravenna examining the books with
reference to the David Jungles account in that bank.
Affiant further says that Mrs. Ella M. Bengtsor
(Emma M. Bengtson?), a certified accountant of Hastings and Harvard, and Mrs. Jungles were in The State
Bank of Ravenna three or four days in the late part of
the summer of 1932 examining its books with reference
to the David Jungles account. This accountant was sent
to the bank by Attorney Wellensiek of Grand Island.
Additional Affidavits for Intervener
Still later, were filed affidavits of Mr. Drake, Mrs.
Bengtson and intervener in substance as follows:
Affidavit of Mr. Drake
On December 20, 1933, was filed the affidavit (42) of
Mr. Oscar A. Drake who deposed that during his employment as attorney for intervener he examined on
several occasions the records of the bank for the purpose of checking the records with an audit formerly
made; that he found the audit contained "matters and
records which in many respects were not contained upon
the records of the bank, and affiant found that many
notes are traced upon the records of the bank in a far
different manner than shown upon that audit, and affiant
believes that the audit mentioned was made from records
of personal records in the possession of the said David
F. Jungles, from oral representations and statements of
other persons and from other sources than the actual
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bank records in many respects, and affiant came to the
conclusion and informed David F. Jungles that if proof
were made from the records of the bank only that his
claim would he supported upon his petition of intervention more substantially in many respects than by any
sort of attempt to follow the use of that audit made by
Walker and Fulk."
Explanatory note: Mr. Drake's examinations were
made in the summer of 1933 (39).
Affidavit of Emma M. Bengtson
Emma M. Bengtson deposed (43) that she had made a
"partial examination" of the bank records "as to note,
and deposit, and check transactions of David F. Jungles"; and that the examination revealed "irregularities
which would require a complete audit to clear up."
Explanatory note: The affidavit is silent as to the
date of her exami mition, but it was in the summer of
1932 (39).
Affidavit of Intervener
Mr. Jungles deposed I44) that the Edwin Spevacek
described in the McGrew affidavit had examined the
records of the bank at intervener's request; that Spevacek made a partial examination and that same was
never completed; that Spevacek informed affiant he
found irregularities and discrepancies and that it would
be necessary to make a complete audit to determine the
actual condition of his account; that the examiner had
been a hank clerk for six or seven years; that after
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tiling of the petition he made no further examination;
that the irregularities and discrepancies were found by
partial examination made previous to the filing of the
petition of intervention.
Explanatory note: Mr. Jungles' affidavit is not specific
as to the date of this examination, but it was made in
1932 (39).
NARRATIVE OF EVIDENCE
IN THE SHOWINGS
For greater clarity related facts and inferences presented by the record are now brought together under
headings suggested by the context. Necessity for this
treatment arises because there was no cross-examination
to clarify, particularize, and contrast general statements
of fact in affidavits.
DID INTERVENER HAVE SUFFICIENT TIME TO
PROCURE COUNSEL AND PREPARE?
Intervener's showing for postponement exhibits Mr.
Hannon's letter (9) to him dated September 16 and
formally advising of withdrawal from the case set for
trial September 22, in which letter the attorney observed
he could have notified intervener sooner. This letter is
the basis of intervener's hypothesis that after Mr. Hannon withdrew he had but four days in which to obtain
new counsel (intervener's brief, p. 13, line 20), and
which was insufficient time for a new attorney to prepare
for trial and that therefore refusal of a continuance
would "work a real injustice and constitute an abuse of
discretion" (see 1st par. argument, intervener's brief,
p. 7)•
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On page 13, the brief says: "Mr. Hannon withdrew
on Saturday, September the 16th."
However, Mr. Hannon wrote a letter to intervener on
September 6th which informed intervener he would quit
practice not later than September 16 (20). Intervener
must have had actual knowledge on September 12 by
reason of Mr. Fred Nye's letter (36) that the ease
would be tried on the 22nd, and he himself admits
knowledge when he says (28) "that he did not receive
any notice that said case would be set for trial until
the 12th." Therefore on the 12th intervener knew that
his case would be tried on the 22nd and that Mr. Hannon
could not try it. So intervener had ten days' actual
notice of Mr. Hannon's withdrawal—not four days'
notice.
Though ten (lays intervened before trial, intervener
admits in the showing to set aside dismissal that he
attempted to consult no attorney until the week of
Monday, September 18th, when he tried to consult Mr.
Hannon, but failed because, intervener says (28), Mr.
Hannon was out of town. However, Mr. Hannon was
in his office a part of September 18th writing a letter
(38) advising the receiver's attorney that he was no
longer interested in the case.
Finally, on the 20th day of September, intervene:.
consulted Mr. Cunningham (23-24), but only to help
him obtain a continuance. This consultation on the 20th
was the first he had with any lawyer after acquiring
actual knowledge on the 12th that the ease was set for
trial and he needed an attorney.
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AS TO THE TIME NECESSARY FOR
PREPARATION
The trial court found (16) that intervener and his
attorneys had written notice of more than one week of
the date of trial, which to the court seemed sufficient;
the intervener asked (8) for 30 days' time; intervener
had 10 days' time after actual notice of trial and after
notice of Mr. Hannon's withdrawal. Mr. Cunningham
himself indicated two weeks as sufficient time to prepare for the trial for he requested department attorneys
"that a continuance of two weeks be granted in order
that the said David F. Jungles might be prepared for
trial" (24).
Hence the dispute narrows to this: Was ten days
sufficient time?
WAS INTERVENER DILIGENT IN OBTAINING
EVIDENCE?
Although the motion for continuance does not specify
what witnesses it was necessary for an attorney to interview or what evidence was to be presented, the brief
makes it clear that an audit of the bank books was the
only evidence which the court could have denied intervener an opportunity to obtain. Mr. Hannon describes
the necessary preparation for trial in these words:
4
in order to prepare for the trial of said case,
it was necessary to go over the records in said bank
*
elf (19)
There is no express mention of an audit or an examination in intervener's motion for a continuance or the
showing in its support. In the showing supporting the
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motion to set aside the dismissal, intervener first mentions audit.
Mr. Hannon says he was informed a number of times
(when, not set out) by an attorney for the department
that it would make an impartial audit, on which he
relied (18). Mr. Cunningham says (24) that the department attorney informed him the bank books were
in bad shape, some missing. Intervener's brief speaks
of the records as "in notoriously bad shape."
However, intervener knew this from the following
examinations he and Mrs. Jungles had previously caused
to be made of the bank's books. These examinations
were:
1. The law firm of Butler & James was retained to
make an examination in one case (37).
2. Walker and Fulk, certified public accountants,
made an audit for intervener. Mr. Cunningham, however, deemed it to he incomplete (13-23).
3. Another certified public accountant, Mrs. Emma
M. Bengtson, made an examination in 1932 by direction
of Attorney Wellensiek. After three or four days (39)
she decided that there were "irregularities" requiring a
complete audit "to clear up" (43).
4. Attorney Oscar A. Drake examined the books for
part of two days in 1933 (39), after which he told intervener "if proof were made from the records of the
bank only that his claim would be supported—more substantially in many respects than by any sort of attempt
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to follow the use of that audit made by Walker and
lk" (42).
5. Edwin Spevacek, who had been for six years a
bookkeeper in a competitor bank, made a four-day examination of the books in 1932 (39). Intervener says
this examiner did not complete his "partial examination" (44).
It seems that these five audits or examinations were
made prior to the fall of 1933 at the direction of Mr.
Jungles, Mrs. Jungles, or their attorneys.
DID RECEIVER PROMISE TO FURNISH
INTERVENER AN AUDIT?
In his affidavit Mr. Hannon says intervener "relied
upon said statement of the officers in the banking de"that an audit would be made"
'
partment"
(18), but omits to say exactly when the statement was
made. And Mr. Cunningham says counsel for the department informed him of an agreement with Mr. Jungles
and Mr. Hannon to have an audit made (24). He does
not state if counsel also informed him of the date of
the agreement. Intervener deposes (26) that Mr. Radke
"agreed that he would have an audit made by representatives of the banking department of affiant's account
available * * * for the
bank
with said state
'
intervener upon trial of said case." Likewise, intervener
omits to mention the date of the agreement.
Prior to July 26, 1932, no such agreement had been
made according to Mr. Hannon's letter (32) of that
date to Mr. Radke in which he suggested a joint audit
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to save expense and invited an answer to his letter.
Intervener fails to produce an answer in the record.
Soon after Mr. Hannon's letter of July, 1932, suggesting a joint audit, Mrs. Jungles proceeded "in the
late part of the summer of 1932" to obtain an audit
and Mrs. Bengtson made her audit (39). During the
year following Mr. Hannon's letter of July, 1932, suggesting a joint audit, intervener did not rely on any
such agreement for in the summer of 1933, Attorney
Drake made his examination (39). Then, intervener
did not rely on any agreement made before the Drake
examination in the summer of 1933. If there was such
an agreement it was made after Mr. Drake's examination in the summer of 1933 and before the trial in
September. None of Mr. Hannon's many letters during that period mention such an agreement.
But Mr. Hannon deposes that he was informed an
audit would be made "a number of times" (18). Intervener says that he and his attorney "repeatedly" requested the audit be made (26).
DID THE WITHDRAWAL LEAVE INTERVENER WITHOUT AN ATTORNEY FAMILIAR WITH THE CASE?
A number of attorneys have touched the Jungles
litigation over the years. Among these attorneys are
Messrs.:
Edward F. Hannon (8)
11. J. Cunningham (4)
Lloyd W. Kelly (17)
Oscar A. Drake (16)
Butler &
Herbert E. Hill (16)
W. L. Minor (11)
Robert P. Starr (11)
II. G. Wellensiek (39)
James (37)
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It is fair to mention that intervener deposes (26)
that he "at one time employed Attorney James to assist
in taking depositions in a different and separate case
from the above; that he did not employ Robert P. Starr
as attorney in the above ease. Nor W. L. Minor in said
ease." however, Mr. James wrote (37) in September,
* •
1933: "In re dungle8 V. Ntate Bank of Ravenna
we were retained by Mr. Cunningham to make an examination of the books of the State Bank of Ravenna
• • *pp
The only evidence which intervener apparently needed
or could obtain was in the bank records. There is a
record in the transcript that several of the above named
lawyers were familiar with these records and the case.
Mr. Drake, in court at the trial representing intervener
(16), himself had inspected the records and knew of
evidence available therein (42).
Mr. Cunningham had filed the
tion (4), and 5 or 6 petitions in
volving the subject matter (11).
& James to make an examination
case.
petition in intervenearlier litigation inHe retained Butler
of the books in one
Attorney Wellensiek had sent Mrs. Bengtson, the certified public accountant, to the bank when she made her
four-day examination (39).
The record therefore shows several attorneys "familiar
with the case" as to the only needed evidence specifically
mentioned in intervener's showings or brief. This record
does not disclose the exact extent of familiarity with the
litigation of other lawyers who appear to have been
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connected with it. But is it reasonable to infer that
each of the attorneys mentioned would have a comprehensive knowledge of any litigation with which he was
or had been connected.
INTERVENER WAS WELL REPRESENTED
AT TRIAL
Intervener deposes "be *
had no attorney
representing him * * * at the time of the dismissal
of said case" (26). In his application (17) he says he
had no attorney to represent him in opposition to the
affidavit in receiver's counter-showing against the motion
to postpone trial. Still, the record discloses intervener
had four attorneys working on his case during the
trial and the day before.
On September 21st, the day before trial, the motion
to postpone was prepared, Attorney Kelly making a
supporting affidavit before Attorney Cunningham as
notary (8). The next morning at trial Attorney Drake
was in court representing intervener and presenting the
motion to postpone (16). Within that hour Attorney
Herbert E. Hill was also in court presenting the motion
to oust Judge Hostetler.
DELAYING DISTRIBUTION TO BANK DEPOSITORS
The depositors of the bank needed their distributive
share of the bank's assets. The need was said to be great.
The receiver had $25,000.00 to distribute. Until the
adjudication of this claim for more than the amount in
his hands, the receiver is withholding distribution of the
$25,000.00 (15).
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One of the members of the depositors' committee attempted apparently to assist the courts in removing the
cause of delay. This depositor went to Mr. Jungles,
the latter says, and said the committee would recommend a payment of $1,000.00 to settle his $65,000.00
claim (28).
OUTLINE OF THE JUNGLES-BANK LITIGATION
Intervener seems to dispute the fact that the instant
case arises out of the subject matter of the old litigation. Whether it does or does not bears importantly
upon many questions herein--such questions as whether
intervener was left without an attorney "familiar with
the case"; as to the probability of existence of evidence
which intervener still seeks; as to whether intervener
really needed an opportunity to prepare his case; as to
his motives and the bona fides of his request for postponement of which the trial judge spoke. To present
this point clearly, we must draw together disassociated
statements in the record in the following form:
The affidavit of Barlow Nye, attorney for receiver,
discloses briefly a history of the Jungles litigation. This
affidavit indicates that: all the transactions upon which
intervener's cause of action is based arose out of transactions with the bank during the years 1920, 1921, and
1922 (11—line 22). In 1927, the bank sought to foreclose a mortgage securing notes of $31,000.00 (12—line
5). Defending, Mr. Jungles alleged he was defrauded in
a real estate deal involving $14,000.00 in other notes
114—line 8). The district court's judgment was appealed by Mr. Jungles to the Supreme Court of Nebraska, which confirmed all matters pertaining to the
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adjudication of his rights as against the bank on account
of said transaction (12—line 14). That each and all
of the causes of action of said intervener as against the
hank were therein adjudicated (12—line 17). All the
causes of action set up in the petition of intervention
were set up in a case (No. 11195) commenced in July,
1928, by Mr. -Jungles against the bank (11—line 5). Mr.
Cunningham, in an effort to get the cause at issue, filed
five petitions and in March, 1930, dismissed said cause
of .action (11—line 9). On the same day intervener attempted to refile a new petition in a new cause of action
(Case No. 11609) (11—line 11). In June, 1931, said
cause of action was again dismimed.
Intervener in the application to set aside dismissal
(17) says he had no attorney to present evidence in
opposition to Mr. Nye's affidavit which contained the
above historical data. In his affidavit (27) supporting
his application to set aside, he says of Mr. Nye's affidavit
this: "* * * the case referred to in the affidavit of
Barlow Nye, which was appealed to the Supreme Court,
did not involve the questions involved in the above entitled case, and that said case was an entirely separate
one and did not in any manner affect the issues involved
in the above entitled case" (27).
With Mr. Jungles' last mentioned affidavit in support
of his motion to set aside are the affidavits of Mr. Cunningham (23) and Mr. Hannon (18). Mr. Hannon's
affidavit is silent as to the above historical data in Mr.
Nye's affidavit. Mr. Cunningham's is likewise silent
except a reference to an audit which he said covered
items listed in case 11609 and what auditors informed
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him and intervener at the time of dismissal of said case
(23).
Mr. Nye's affidavit was part of the showing
against postponement.
PROPOSITIONS OF LAW
I.
Unless it clearly appears that there has been an abuse
of sound discretion, the trial court's ruling upon a motion for a continuance will not be disturbed.
Billings v. iIcCoy Brothers, 5 Neb. 187.
Mahaffy v. Hansen Live Stock ik Feeding Co.,
105 Neb. 9, 178 N. W. 829.
Kansas City R. Co. v. Conlee, 43 Neb. 121, 61
N. W. 111.
20-1148, Comp. St. 1929.
It is not an abuse of discretion to refuse a postponement to one who has not shown diligence in procuring
counsel.
Pool v. Riegal, 46 Okl. 5, 147 Pac. 1193.
Van Cott v. Wall, 53 Utah 282, 178 Pac. 42.
Maloney v. Traverse, 87 Ia. 306, 54 N. W. 155.
Waldron v. Lapidus, 121 Neb. 54, 236 N. W. 139.
Miles v. Ballantine,4 Neb. (TJnof.) 171, 93 N. W.
708.
2 Bancroft, Pr. 1518.
6 R. C. L. 551.
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ARGUMENT
1.
Unless it clearly appears that there has been an abuse
of sound discretion, the trial court's ruling upon a motion for a continuance will not be disturbed.
This court has repeatedly announced the foregoing.
The rule is stated in the following form in syllabus 3,
Kansas City R. Co. v. Coulee, supra:
"The ruling of a district court on a motion for
a continuance will not be disturbed unless it is
manifest the court abused its discretion, and the
litigant, , himself guiltless of negligence or laches,
was thereby deprived of an opportunity to make his
case or defense."
The Conlee case did not involve absent counsel, but
absent evidence. The motion for continuance was overruled because the movent failed to show diligence in
obtaining the evidence by not availing itself of ample
opportunity to take depositions. If deprived of an opportunity to make its case it was deprived by its own
fault. In the opinion, it is said:
"An application for a continuance of a cause is
addressed to the sound legal discretion of the trial
court, and its ruling thereon will not be disturbed
unless it clearly appears that such discretion has
been abused, and that by the refusal of the continuance a party has been without his fault deprived of an opportunity of making his case or
defense. Manufacturing Co. V. McAlister, 22 Neb.
359, 35 N. W. 185."
In the instant case we think the court exercised sound
legal discretion. Intervener's conduct clearly discloses
an utter lack of ordinary diligence in obtaining his evi-
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dence or in procuring counsel to try his case. Just as it
is no abuse of discretion to deny a postponement to a
litigant who has not been diligent in obtaining evidence,
it is no abuse of discretion to deny a continuance to one
not diligent in procuring counsel.
11.
It is not an abuse of discretion to refuse a postponement to one who has not shown diligence in procuring
counsel.
There is something arresting in a litigant's plea that
he has been denied a day in court. So the courts are
lenient with one denied the benefit of advocacy by sudden illness and withdrawal of counsel on the eve of trial.
The courts are less lenient with him who fails to show
diligence in obtaining counsel. Obvious and unexplained
failure to obtain counsel when ample opportunity is afforded raises a duty upon the court to scrutinize efforts
to postpone. Otherwise, there is "the law's delay." Consequently, the exercise of this duty in a proper case is
no abuse of discretion.
The writer in 6 It. C. L. 551 observes that:
"As respects the withdrawal of counsel from a
cause as a ground for continuance, it is generally
recognized that such withdrawal, though unexpected,
and occurring on the eve of the time set for trial
does not necessarily entitle a party to a continuance,
since otherwise, if a cause had to be continued every
time an attorney withdrew there would be no end
to the matter."
Intervener's sole complaint is that lie was denied an
opportunity to timely replace his counsel who had with-
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35
drawn from the case; that denial of a continuance under
the circumstances constitutes abuse of sound legal discretion. Complaint is based upon this premise:
"Mr. Hannon withdraw on Saturday, September
the 16th. At best, if appellant could have obtained
counsel instantly upon receiving that letter (the
so-called letter of withdrawal dated September
16th), but 4 days would have remained (p. 13, intervener's brief)."
. Again, intervener says in his brief at p. 18:
"Nor can any lack of diligence be claimed. Mr.
Jungles could not have anticipated Mr. Hannon's
forced withdrawal from the cause. Indeed, he could
not even have learned., of it until .the 18th, .which
would leave him only 4 days in which to retain new
counsel, and for them to acquaint themselves with
the case."
These persuasive statements are based upon a demonstrably erroneous assumption that Mr. Hannon withdrew on the 16th and intervener -could not even have
learned of it until the 18th."
The demonstration lies in intervener's own record.
Mr. Hannon's letter dated September 6, which intervener does not deny receiving in ordinary course,
informed intervener that he would withdraw entirely
from the law practice by the 16th (20). Intervener had
notice on the 12th that the case would be tried on the
22nd (see p. 23, this brief). Hence on the 12th, intervener knew that Mr. Hannon would not act as his
counsel on the 22nd. Therefore, intervener had ten days
instead of four days in which to procure new counsel.
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In Pool v. Riegal„ supra, it is said in the syllabus:
"It is not an abuse of discretion to overrule a
motion for continuance on account of absence of
counsel where the motion is unverified, does not show
that the absent counsel is the sole counsel in the
case. the facts and circumstances with reference to
his absence, or that aug effort has been made to
procure other counsel."
Intervener's showing supporting the motion for continuance does not clearly disclose that Mr. Hannon was
his sole counsel, or, that he had made a single effort
to procure other counsel to try the case after Mr. Hannon
withdrew. The transcript affirmatively shows that Mr.
Cunningham's appearance was entered when he filed the
petition in intervention. The transcript does not show
it was ever formally withdrawn, though he says (23),
he had no connection with the case from early 1932 to
September 20, 1933. The transcript shows that after
the 12th, intervener did not procure substitute counsel.
He apparently consulted other attorneys including Mr.
Drake and Mr. Hill, but only for the limited purpose
of obtaining postponement and for the purpose of ousting Judge Hostetler, not for the purpose of obtaining
counsel to try the case.
In Van Cott V. Wall, supra, the court observed that
the continuance therein was not sought on account of
the absence of a witness or witnesses, nor because the
defendant had evidence which he could not then present,
but because lie desired to employ other counsel. The
opinion says:
"We remark that the record discloses that the
defendant for some time had been fully advised just
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when the case was set for trial, and had ample time
. The record is
counsel
to employ other'
devoid of any showing of diligence on the part of
defendant in that regard."
In the Iowa case of Maloney v. Traverse, supra, the
denial of a postponement was approved because of lack
of diligence in putting off employment of counsel until
the day of trial. We quote from that opinion:
"The application to continue or postpone the
case is quite extended. and need not be produced
here. It is, in effect, a showing by the attorney
for Peter Maloney that he was employed only a few
minutes before the trial, and could not, with the
utmost diligence and tact, prepare for the trial of
the case then called. It asked for a postponement
to some other day in the term. There seem to have
been other counsel for Maloney, who were for some
reason no longer appearing. There is no showing
whatever of the diligence of Maloney in securing
counsel, or why his former counsel did not further
appear. The district court said, in ruling upon the
motion, that, while the attorney making the application was acting in good faith, the defendants had
not evidently 'been diligent, or they could have had
counsel, and ought not to put off the employment
of counsel until today.' The court specially found
that the clients had been negligent, and refused the
application. The ruling was right. It. was the duty
of the client, as well as the attorney, to be diligent."
After Mr. Hannon withdrew, intervener put off any
attempt to interview another attorney until the second
day before trial. It is inferable that when he saw Mr.
cunning,ham on the 20th, that the latter either refused
to try the ease or Mr. Jungles did not desire him to try
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it; likewise Mr. Drake on the 22nd. Inferable, because
both were acquainted with the search for evidence in
the bank records and because in May, 1932, Attorney
Drake said that he was withdrawing from the case (13),
and, because Mr. Cunningham explains incidentally
(24), that he was engaged in the trial of a case set for
September 22nd. In the fact that intervener applied
for a thirty day continuance lies the inferance that the
continuance was not asked for the purpose of enabling
Mr. Cunningham to try the case, as it is reasonable to
assume that Mr. Cunningham's case set for the 22nd
would not last so long.
In the case of Waldron V. Lapidus, supra, Mr. Justice
Good thus succinctly comments upon the conduct of litigants who consult their own convenience and purposes
in disregard of the rights of others and the orderly
administration of justice:
"The time of trial of causes in court cannot be
made to depend on the whim, caprice, or convenience of litigants. Unless good cause can be shown,
litigants should be ready to proceed with the trial
of their causes when regularly reached. A motion
for continuance is addressed to the sound discretion of the trial court, and, unless an abuse thereof
is shown, its ruling will not be disturbed. Diney V.
State, 97 Neb. 853; Ridings v. State, 108 Neb. 804;
Smith v. Stale, 109 Neb. 579; Middaugh V. Chicago
& N. W. R. Co., 114 Neb. 438."
Miles v. Rallantine, supra, is useful in this problem.
The facts here and in the Miles case are strikingly
similar as to personnels, circumstances, and events.
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Therefore, we are justified in quoting at length from the
opinion in that case:
"At the October term of the court for the year
1900, and on the 1st day thereof, the cause was assigned for trial. On the following (lay the plaintiffs in error made an application for a continuance,
based on certain affidavits. It was alleged in the
affidavit of William H. Miles that one Tanner was
his counsel in the case, and was in sole charge of
it until August 18, 1900, at which time, owing to
differences arising between them, he discharged the
said Tanner from further employment in the case,
and, on account .of illness, he had not. been able to
procure other counsel until the first day of the term,
at which time he employed one S. A. Searle to act
in that, capacity for him; that he was informed by
said Searle that it was impossible for him (the
said Searle), for want of time, to properly examine
the questions involved in the case, and prepare for
trial at that term. He further alleged that it was
necessary for him to have certain persons, whom he
named, as witnesses, and who, he alleged, if present,
would testify that he had been in open, notorious,
adverse, and exclusive possession of the premises for
more than 10 years next before the commencement
of the action; that they were absent from the county;
that one of said witnesses was in the state of Illinois, and as to the other two, their whereabouts was
unknown; that the same facts could not be shown
by the testimony of any other witnesses. This affidavit was supplemented by the affidavit of S. A.
Searle, who alleged that, for want of time, it was
impossible for him to properly prepare the case for
trial at that term of conrt. On motion of the plaintiffs, this application, and the affidavits accompanying it, were stricken from the files, and the motion
for a continuance denied. It appears further from
the record that one Graham was also one of plain-
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tiffs' attorneys, and it does not appear that he had
been discharged, or was in any way incapacitated
from serving as counsel in the case; and an examination of the affidavits discloses that no diligence
whatever was exercised by the plaintiffs to procure
other counsel, although they had discharged Tanner, as they allege, about two months before the
case was set for trial. No diligence was shown on
their part in attempting to obtain the testimony
of absent witnesses. No reason was shown why
their depositions had not been taken, and, as to
the two witnesses whose whereabouts were unknown,
there was no showing that their testimony could be
procured at a future time. Again, it appears that,
by the Pules of practice in force in the trial court,
one who desires a continuance of his case must file
his application on or before the first day of the
term. It does not appear 04 the rule is an unreasonable one. The question of refusing or allowing a continuance is left largely to the discretion
of the trial judge. In this case a careful examination of the application and affidavits convinces
us that there was no abuse of discretion in striking
the application from the files, and refusing the continuance of this case. Therefore the action of the
trial judge in that behalf is affirmed. Stratton v.
Dole, 45 Neh 472, 63 N. W. 875; Storz v. Finklestein, 48 Neb. 31, 66 N. W. 1020; Burris V. Court,
48 Neh 181, 66 N. W. 1131."
The Parallels of Miles and Jungles
Remarkable are the parallels in the Miles case and
the Jungles case. Even obscure circumstances in one
find faithful counterparts in the other. However, Miles
must have been somewhat more diligent than Jungles
for the one employed substitute counsel the day his
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cause was assigned for trial; the other never employed
substitute trial counsel.
After the cases were set for trial the similarities
abound. Both needed time to procure counsel. Both
needed time for new attorneys to prepare. Miles did
not say when he could obtain needed evidence; nor does
Jungles.
Miles, it appeared from the record, had another attorney who did not appear to have been discharged or
was in any way incapacitated from serving as counsel
in the case; intervener, likewise. Miles' showing disclosed no diligence in attempting to procure other counsel after his attorney was discharged; nor did Jungles
attempt to procure other trial counsel after Mr. Hannon withdrew. Miles in his showing did not exhibit
diligence to obtain absent evidence; nor did intervener.
Miles did not show it could be procured in the future;
nor did Jungles.
There was no abuse of discretion, it was said, in
refusing Miles' application for continuance. So there
was no abuse of discretion in this case. The action of
the trial judge in the Miles case was affirmed.
He who sleeps in decision, sleeps in peace. So the
sleep of restless depositors, perhaps even that of intervener himself, we think, may be more peaceful, if the
startling parallels persist unto the end.
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INTERVENER'S CITED AUTHORITIES DO NOT
FIT THE FACTS IN THIS CASE
We have no quarrel with intervener's abstract proposition that the withdrawal of principal counsel on account of illness, leaving insufficient time for new counsel
to acquaint themselves with the ease, is a ground for
continuance.
Of course, Mr. Ilannon's condition required him to
seek a kindlier climate where it is hoped he may be
speedily restored to health and return to his practice.
But the facts do not justify the application of intervener's above stated legal proposition. It does not
clearly appear from the showing for the continuance
that Mr. Hannon was principal counsel, or that he
was relied on to try the case. He says that to prepare
one must go over the records of the bank. Of course,
the presumption is that as a good lawyer he had prepared. Intervener does not detail the preparation made
by Mr. Hannon but the record affirmatively shows preparation by other attorneys like Mr. Drake whose examination of the bank records was so complete he could
interpret the certified accountant's audit. There is no
showing that the new counsel could ever more thoroughly acquaint themselves with the case.
Five examinations of the bank books made in 1933 and
prior years were unsatisfactory to intervener. The
trouble seemed to be that none of the auditors could
obtain just the evidence which intervener wanted or
needed. Their audits always failed, he implies. There is no
showing that new counsel could ever find the evidence.
It was not available before trial for new or old counsel
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to .acquaint themselves with. The evidence which has
eluded so many lawyers, auditors, and bank bookkeepers is still to be found. It is not clear what is meant
by intervener's words: "insufficient time for new counsel
to acquaint themselves with the ease," in connection
with counsel's withdrawal. More nearly accurate would
have been a statement that intervener needed more time
to search for evidence.
Intervener injects a thought that. the receiver's attorneys agreed to furnish him an audit, a complete one
apparently in the sense that it would disclose the
elusive evidence. But the charge that their was such
agreement and that he relied upon it melts away under
intervener's conduct which shows his auditors searching
the records before and during the summer preceding the
trial in September. Claims of "repeated" requests for
the audit and claims of reliance upon the promise while
intervener was himself obtaining audits seem incongruous. Why should intervener expect the receiver or anyone to furnish a complete audit from books "notoriously
in had shape?"
Our view is that Mr. Hannon did not withdraw leaving insufficient time for others to prepare. He withdrew ten days before trial. Mr. Cunningham indicates
the time needed to prepare as fourteen days.
Analysis of Cases Cited by Appellant Under
Foregoing Proposition
Several cases are cited by intervener (p. 6 his brief),
supporting the proposition that withdrawal on account
of illness leaving insufficient time for new counsel to
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prepare is ground for a continuance. However, the facts
of these cases do not, it seems to us, remotely parallel
those in the present case. They relate to situations
where the only counsel familiar with the case became ill
suddenly, on the eve of trial, or under such circumstances that a litigant was unable by diligence to procure other counsel. In the cited cases the element of
withdrawal is not generally present.
Following is an
analysis of these cases cited by intervener:
In the case of Rhode Island v. Maseachusette (1836),
counsel for Rhode Island was prevented from attending
by "unexpected and severe illness."
Massachusetts, in
possession of the territory in dispute, was not injured
by delay. Counsel did not withdraw.
In Rumford Chemical Works v. Hecker (1834), the
New Jersey court said: "The court listens more readily
to such a suggestion, as a reason for postponement, when
It comes at the first term after issue joined. It would
not be a safe ground to rely upon ordinarily, when the
proceedings have been long pending and the sickness
of long standing." Withdrawal element not present.
In Schultz V.
sick and unable
indicate whether
long standing.
present.
Moore (1838). Leading counsel was
to attend court. The report does not
the illness was on the eve of trial or
The element of withdrawal was not
In Turner v. Loomis, (Ia.), the court said in the
syllabus: "On the sudden illness of his counsel, de-
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fendant is entitled to a continuance * * *," and that
"The unexpected illness of counsel prevented his attending court *
not present.
The element of withdrawal was
In Frey V. Shadbolt Mfg. Co., the opinion of nine
lines states that the counsel was ill "when the case
was called." No element of withdrawal.
In Kramer v. Heins. (N. D.), the point involved
seemed to be less that of illness of counsel than the
effect of a continuance upon jurisdiction. The syllabus:
"Sect. 8615 * * * is not so construe
'
d
as to
imply that such district court will lose jurisdiction—
merely because the case has been continued over the
term on account of the illness of counsel." No element
of withdrawal.
Rice v. M elendy (1872), was a case involving illness
and one in which "it, was impossible for any other
attorney to prepare for the trial of the case at that
term, owing to its *•
* complexity and other peculiar
facts * * *." No element of withdrawal.
In A merican Soda Fountain Co. v. Dean Drug Co.
(1.907), it was conclusively shown that one of defendant's attorneys was engaged in a murder trial, another
was attending his mother's funeral, and a. third was
unfamiliar with the case. No element of withdrawal.
The above analysis includes all the cases specifically
cited under intervener's proposition IT.
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As to the Application to Set Aside the Dismissal
Though intervener relies upon an assigned alleged
error of the court "in not granting the application of
appellant to set aside the dismissal of the petition of
intervention," the record does not disclose that the trial
court so ruled. Nor, does intervener's brief treat this
assignment seriously. His argument is generally silent
thereon excepting on p. 9 thereof where in nine lines
the fact of filing is mentioned. The showings in its
support have been useful, however, in disclosing instructive facts bearing upon intervener's complaint.
An examination of the showing supporting the motion to set aside the judgment, we think, fully justifies the statement that it shows none of the requirements of diligence missing in the application for continuance.
Nor do we believe intervener seriously contends that
Judge Hostetler was prejudiced either against "the
case, the appellant, or his attorney," as he conjectures
on p. 16 of his brief; nor that any statement in the
receiver's showing misled the trial judge. No act or
word suggesting bias in the trial judge is pointed to,
other than the act of overruling the motion; his long
experience in the Jungles litigation over the years
suggests that none could mislead his mind as to any
controlling fact involved.
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IN CONCLUSION
When intervener presented his motion for continuance he failed to show clearly that withdrawing counsel
was sole counsel; failed to show diligence in employing
other counsel; failed to show who were the- witnesses
to be interviewed or what their testimony would be,
or if either existed. The reasoning of Miles v. Banat?:
tine applies in this case.
We now know intervener had ample time to employ
new counsel and prepare. Ten days were at his disposal.
His own representative has indicated he could prepare
in fourteen days. It does not appear that intervener
has yet procured the evidence or an attorney to present
it.
If intervener had a ease to present by reason of evidence in the bank records or elsewhere, he was deprived
of an opportunity to present it only by his own negligence in failing to use ten days time to procure counsel
and produce evidence. He was. not deprived of the
opportunity through manifest abuse of sound legal
discretion.
The bank record evidence 4If which intervener has
said so much may exist. But it eludes so many years
of search as to suggest that after all its existence may
lie in a phantom of hope. Meanwhile the depositors'
money is withheld from them. Judge Hostetler could
have reached no logical conclusion other than that the
motion for continuance was for dilatory purposes.
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The litigation should end. The depositors should be
paid. Further delay will not benefit intervener; it will
further injure them. The order and decree of the district court, we think, should be affirmed.
Respectfully submitted,
JAMES L. BROWN,
FRED A. NYE,
FRANZ C. RADKE,
BARLOW NYE,
Attorneys for Appellee.
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Printed and bound ,),
RIGHTERS
Law Brief Printers
LINCOLN, Niue.
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29083
In The
Supreme Court of Nebraska
STATE OF NEBRASKA EX REL. C. A. SORENSEN.
ATTORNEY GENERAL, PLAINTIFF,
V.
THE STATE BANK OF RAVENNA, DEFENDANT;
DAVIT) F. JUNGLES, INTERVENER AND
APPELLANT,
E. H. LITIKART, RECEIVER. OF THE STATE BANK
OF RAVENNA, RAVENNA, NEBRASKA,
DEFENDANT AND APPELLEE.
APPEAL FROM THE DISTRICT COURT OF' BUFFALO COUNTY.
Hon. Bruno 0. Hostetler, Judge.
REPLY BRIEF OF APPELLANT.
LLOYD KELLY,
B. J. CUNNINGHAM,
Grand Island, Nebraska,
Attorneys for Appellant.
WEEEBSER-BRINKMAN CO.. Law Briefs, Lincoln, Neb.
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Federal Reserve Bank of St. Louis
General Number 29083.
In The
Supreme Court of Nebraska
STATE OF NEBRASKA EX REL. C. A. SORENSEN,
ATTORNEY GENERAL, PLAINTIFF,
V.
THE STATE BANK OF RAVENNA, DEFENDANT;
DAVID F. JUNGLES, INTERVENER AND
APPELLANT,
E. H. LUIKART, RECEIVER OF THE STATE BANK
OF RAVENNA, RAVENNA, NEBRASKA,
DEFENDANT AND APPELLEE.
APPEAL FROM THE DISTRICT COURT OF BUFFALO COUNTY.
Hon. Bruno 0. Ffostetler, Judge.
REPLY BRIEF OF APPELLANT.
LLOYD KELLY,
B. J. CUNNINGHAM,
Grand Island, Nebraska,
Attorneys for Appellant.
We are satisfied that appellant's brief fairly covered
the issues in the above case, but desire to reply to
some of the statements contained in appellee's brief,
which, we believe, are somewhat misleading.
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The first point which we wish to consider is the
continual insistence on the part of the appellee that
the intervener and appellant was represented by attorneys sufficiently familiar with the case to carry on
the trial in the absence of Mr. Hannon. The appellee
has repeatedly, in his brief, named the various attorneys
whom he states were interested in the case, and on
page 27 of appellee's brief attempts to show the court
that nine attorneys had been connected with the case.
The transcript clearly indicates that Mr. Hannon was
the only attorney who handled the case after the filing
of the petition of intervention; that he was employed
in the case from December, 1931, until September,
1933; that the petition of intervention was filed by
Mr. Cunningham, but he had no further connection
with the case whatsoever. Mr. Kelly and Mr. Hill
appeared for Jungles regarding the continuance of the
case on September 22, 1933. Mr. Minor and Mr. Starr
had been attorneys for Mr. Jungles in an entirely different suit several years previous and the matter involved was a foreclosure of the real estate mortgage.
Mr. Wellensiek had recommended an auditor who made
an attempt to audit the bank hooks but found them
in such condition that it was impossible to do so. Mr.
James made a partial audit of the bank books at one
time, which was long before the present case was filed.
For the appellee to claim that all of the above attorneys were familiar with the case, or could have
tried the case, is unfair, and not entitled to consideration by this court. Mr. Hannon had been handling the
case for Mr. Jungles and, as set forth by his affidavit,
had made repeated attempts through correspondence
and personal calls on the attorneys for the banking
department, for a settlement. The condition of his
4
3
health became so serious from tuberculosis that he was
compelled to remove to a different climate, but he
notified the appellant on the 16th of September, and
informed the attorneys for appellee that he was withdrawing from the case on account of his health, but
up until a few days before that time, he had relied
upon representations made to him by counsel for the
appellee that a settlement could probably be effected.
4
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Another statement in appellee's brief is to the effect
that the case was set for trial on September 2nd. The
only support this statement has is a general statement
in the affidavit of Mr. Nye, who does not state he
was present when the ease was set, and no one else
appears to have had any knowledge that the case was
set at that time. The letter of Mr. Hannon, shown
at page 20 of the transcript, shows that Mr. Hannon
had called to see Mr. Radke regarding the case on
September 6th and discussed a settlement of the case.
Nothing was said with reference to the case being set
for trial, but on September 9th, notices were sent out
by Mr. Nye at Kearney that the case had been set for
trial. The judge's docket contains no such entry and
none is shown in the transcript, and it appears from
the transcript and the evidence that the case was never
actually set down for trial by the district judge. No
other application for continuance had ever been made
by Mr. Jungles and we submit that there is no evidence to justify the conclusion that the request for
continuance was made in bad faith and solely for the
purpose of delay. Appellant agrees with the appellee
that payment to the depositors in said bank should not
be delayed, and that the case should have been disposed of sooner, but, if the appellee's attorneys would
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4
have prepared an audit of the account of Mr. Jungles
in the bank, the matter could have been disposed of long
ago and without the necessity of an appeal to this court,
which has already delayed the matter for more than
six months. Mr. Jungles had no control over the books
of the bank. It was necessary for him to obtain evidence from the books of the bank, which were in the
custody of the banking department for nearly a year,
and the statement of Mr. Radke to the effect that part
of the bank records were missing so that it was difficult
to make an audit, is evidence of the difficulty under
which Mr. Jungles was laboring in endeavoring to obtain
an accounting with the bank. The fact that Mr. Radke
had agreed to allow a general claim in the sum of
$10,000.00, if accepted by Mr. Jungles, and that a
member of the depositor's committee agreed to recommend a settlement on the basis of $1,000.00, proves
that the claim is not groundless as contended by the
attorneys for the appellee. The attorneys for the banking department should have been willing to audit the
books of the bank in connection with the Jungles
claim, because the claim of Mr. Jungles is just as valid
and legitimate as any other claim against the bank.
If his claim is unfounded, an audit of the account at
the bank would settle the controversy. The attorneys
for the banking department had agreed to have such
an audit made, then refused to do so, and the attempt
to force the case to trial before Mr. Jungles had an
opportunity to have such an audit made, seems unfair
and unjust.
We hesitate to continue further with this argument,
but feel urged to do so in view of other statements
made by appellee in his brief. For instance, on page
5
4
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29 of appellee's brief, we find the paragraph heading
"Intervener Was Well Represented at Trial," and the
second paragraph therein stating:
"On September 21st, the day before the trial,
the motion to postpone was prepared, Attorney
Kelly making a supporting affidavit before Attorney Cunningham as notary (8). The next morning at trial Attorney Drake was in court representing intervener and presenting the Motion to
postpone (16). Within that hour Attorney Herbert E. Hill was also in court presenting the motion
to oust Judge Hostetler."
Appellee contends that the only information necessary
for any one of these attorneys to proceed to the trial
of the case was contained in the hank records. The
foregoing review of the connection these attorneys had
with the case is sufficient to show that no one of them
could have proceeded to trial—at least if giving appellant a chance to be represented by adequately prepared counsel was any object. Mr. Kelly, being Mr.
Hannon's partner, asked for the continuance and had,
theretofore, had no connection with the case. Mr. Cunningham had had no connection with the case for two
years, unless notarizing the affidavit would be regarded
as sufficient to inform him of the developments of the
case. Messrs. Drake and Hill appeared on the day
of trial solely to present motions for continuance and
change of venue.
At no time during the entire course of the Jungles
litigation has there been more than one attorney having
entire charge of the case. At the time the case was set
for trial, Mr. Hannon was that attorney. That he
withdrew on the eve of the trial should not cause Mr.
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Jungles to be branded with "lack of due diligence"
simply because other attorneys had been once involved.
We have not been heretofore familiar with the argument
that because more than one attorney has been involved
in one manner or another with a case that the case
loses standing and that a dismissal is justified on that
ground. Nor are we pleased or persuaded that such
an argument should be given consideration before this
court.
2.
On September 20th, Mr. Hannon being out of town,
Mr. Jungles requested Mr. Cunningham to go to Lincoln with him to see the state banking department
counsel. Mr. Cunningham did so, and upon talking
with Mr. Radke, counsel for appellee in this case, informed him of the situation and asked that a two weeks'
continuance be granted. Mr. Barlow Nye was consulted by Mr. Radke, and Mr. Nye refused to agree
to a continuance, his sole reason for so refusing being
that if such a continuance were granted that his father,
local counsel aiding the appellee at Kearney, would
withdraw from the case. Mr. Radke, however, admitted
that he had agreed with the Jungles and Mr. Hannon
that a complete audit of the bank's books should be
made, and suggested that the two weeks' continuance
be asked for and that he thought the judge would be
fair in deciding the matter of a continuance. This was
two days prior to trial. The Jungles admitted that
without Mr. Hannon they would be unable to go to
trial on the 22nd of September. They further informed
Mr. Radke that because they could not go to trial, the
department's witnessrs and counsel should be accordingly notified. Yet, even knowing that appellant would
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and could make no attempt to go to trial on the issues,
the appellee complains in his brief that:
"He had brought four witnesses from distances
to attend. Considerable time had been spent preparing for trial. The receiver had brought to the
courtroom all the books and records of the bank,
arranged and indexed to facilitate introduction of
evidence" (brief, p. 11).
The only reason given by the department, prior to
the affidavit made by Mr. Nye in opposition to the
motion for a continuance, for refusing to agree to such
a continuance was the fact that Mr. Nye's father
would withdraw. Counsel for appellee had ample notice that such a continuance would be asked for, and
that there would be no trial on the merits on September 22nd. Accordingly, there should be no argument
of expense and bother incurred on account of attempting
to go to trial on the 22nd.
3.
Appellee raises the question of whether the receiver
promised to furnish the intervener an audit. Mr.
Hannon's affidavit states in part that he "relied upon
said statement of the officers of the banking department * * * that an audit would be made" (Trans. p.
18). According to Mr. Cunningham's affidavit, when
he accompanied the intervener to Lincoln to see the
department's counsel, Mr. Radke also admitted that
there had been an agreement to make such an audit,
"but that in attempting to do so, the examiner found
the books in bad shape, some of the records missing,
and that he thought it would be impossible to get a
complete audit without great expense" (Trans. p. 24).
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It was probably because the bank's books were in such
bad shape that the audits and examinations made on
behalf of the appellant, and which are played up so
continually throughout appellee's brief, were inadequate to prepare the appellant for trial.
Appellee's argument for claiming that no such promise
was made to furnish the intervener an audit seems to
be based principally upon the fact that the intervener
fails to mention the exact dates upon which each of
these conversations and agreements were had with the
counsel for the banking division.
The receiver, and counsel for the department, did not
deny, by affidavit or otherwise, that they did make
such an agreement with intervener that such an audit
should be made.
4.
Appellee further questions whether intervener had
enough time to prepare for trial after learning that
Mr. Hannon was going to withdraw. Mr. Hannon's
letter actually withdrawing was written on the 16th,
and with Sunday intervening, the Jungles probably
received it on the 18th, four days prior to date of
trial (Trans. p. 9). Counsel for appellee, however,
claim that the intervener had ten days actual notice
due to Hannon's letter of September 6th stating that
he would withdraw from practice by the 16th, and Mr.
Fred Nye's letter stating that the case was set for the
22nd, received on September 12th (Trans. p. 36). However, an examination of Mr. Hannon's letter of the
6th will disclose that the entire letter is concerned
with the proposition of settlement. At that time, both
•
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parties were evidently planning on a compromise being
reached. Quoting from Mr. Hannon's letter (Trans.
p. 20), we find that he states that:
"I was in Lincoln yesterday and talked to Mr.
Radke in reference to settlement of your claim.
* * * He had just returned from his vacation that
morning and was quite busy, but promised me
that he would try and get something done on it
this week if possible. Mr. Luikart and Mr. Stall
were both out of town up in Wyoming somewhere
and as soon as they get back he would try and get
together with them on a proposition of settlement"
(italics ours).
Up until the 16th, the Jungles firmly believed that
the case would be settled. They had good reasons for
so believing.
5.
Under Part II of appellee's argument in his brief
we find the claim that the intervener failed to use due
diligence in obtaining other counsel; and further that,
"Obvious and unexplained failure to obtain counsel
when ample opportunity is afforded raises a duty upon
the court to scrutinize efforts to postpone" (brief, p.
34). The quotation alone will serve to point out the
differences in viewpoint between appellant and appellee.
It is our claim that the failure to get other counsel
to try the case was not "unexplained." The explanation is simply that the few days left to intervener after
Mr. Hannon's withdrawal were not time enough for
one to prepare for a case involving bank transactions,
particularly when the books were in the jumbled condition they were in. Furthermore, appellee's position
necessitates the unwarranted assumption that the in-
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10
tervener had "ample opportunity" to obtain other
counsel. This question is one which we are willing
to leave entirely to the discretion of this court. We
wonder if the banking department would have considered four days ample opportunity and time to retain
counsel and prepare for the trial of this case.
As regards the cases cited by appellee, we find ourselves
in complete accord with their holdings. It simmers
down only to the question of whether the facts of this
case fit the holdings quoted. For instance, we think
the quotation taken from Mr. Justice Good's opinion
in the case of Waldron V. Lapidus to be a just and commendable statement of the law. Appellee did not point
out just what conduct on the part of intervener he
considered to be whimsical, capricious or considerate
only of his own convenience, and accordingly it stands
only as an abstract statement. We feel that nothing
short of a strained construction would allow such a
classification of intervener's conduct. As regards the
Miles case, claimed to have such remarkable parallels
to the Jungles case, and upon which appellee relies so
completely, we again disagree with appellee's application of its law to the facts of this case. In discussing
those parallels, the appellee states that the intervener
never employed substitute counsel (brief, p. 41), directly contradicting his own argument that intervener
was well represented at the trial, naming four attorneys (brief, p. 29). Furthermore, Mr. Jungles not
only could not obtain needed evidence, but up until time
for trial had relied upon representations of the receiver
and the banking department that a complete audit
would be made. Appellee deems it desirable that the
"startling parallels persist unto the end" and that the
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dismissal be affirmed; we would deem such a result startling as effecting a grave injustice.
The trial court dismissed this action, the following
being a part of the journal entry:
"Accordingly, the court finds that the application for a continuance is made merely for dilatory
purposes and not in good faith" (Trans. p. 16).
Barlow Nye's affidavit contesting the motion for a continuance reads:
"Affiant further says that it is his belief that if
a continuance is granted to said intervener that
no new counsel will be employed and that said
cause will never be tried and that the said David
J. Jungles has no desire to litigate the matters set
forth in his petition of intervention."
Both of the above quotations show that Mr. Nye and
the court considered intervener's move to have been
made in bad faith. The intervener, however, had never
before asked for a continuance. This was not one of
many such moves, but the only one of its kind. The
conclusion is hard to escape that the court was either
violently prejudiced to the intervener and his case, or
was swayed by the statements made in Mr. Nye's affidavit. No justification can be given for either the
attitude of the court or of the statements by Mr. Nye.
Mr. Jungles had given them no provocation for feeling
that his actions were male fides. On the contrary, we
find Mr. Hannon writing to Mr. Radke on September
11, 1933 (Trans, p. 10), and stating in part.:
"If it cannot be settled, the Jungles are anxious
that it be tried at an early date for there is no
object in delaying it further; however, they would
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12
probably want more time than the 22nd of this
month to get a new attorney."
The Jungles were perfectly willing that the case should
stand trial. We regard Mr. Nye's statement that he
believed that Mr. Jungles "had no desire to litigate
the matters set forth in his petition" as totally unfounded. If Mr. Jungles was at fault, it was probably
in placing too great reliance upon the representations
of the appellee and the banking division that an audit
would be made, or a settlement reached, rather than
in exercising a lack of due diligence, or bad faith.
We respectfully submit that the judgment of the trial
court should be reversed.
Respectfully submitted,
LLOYD KELLY,
B. J. CUNNINGHAM,
Attorneys for Appellant.
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29083
In The
Supreme Court of Nebraska
STATE OF NEBRASKA, EX. REL, C. A. ,-;( wENsr,N.
ATTORNEY GENERAL, PLAINT! VP.
V.
THE STATE BANK OF RAVEN NA, DEFENDANT,
DAVI D F. .1[NO[ES, INTERVENOR AND
APPELLANT,
E. H. LUIKART, RECEIVER OF THE STATE BANK
OF RAVENNA, RAVENNA, NEBRASKA,
DEFENDANT AND APPELLEE.
' BUFFALO COUNTY.
APPEAL FROM THE DISTRICT COURT 01,
Hon. Bruno 0. Hostetler, judge.
MOTION FOR REHEARING OF APPELLANT AND
BRIEF IN SUPPORT THEREOF.
LLOYD KELLY,
B. J. CUNNINGHAM,
Attorneys for Appellant,
WEKESSER-BRINKMAN CO., Law Briefs, Lincoln, Neb.
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Federal Reserve Bank of St. Louis
General Number 29083.
In The
Supreme Court of Nebraska
STATE OF NEBRASKA, EX REL, C. A. SORENSEN,
ATTORNEY GENERAL, PLAINTIFF,
V.
THE STATE BANK OF RAVENNA, DEFENDANT,
DAVID F. JUNGLES, INTERVENOR AND
APPELLANT,
E. H. LUIKART, RECEIVER OF THE STATE BANK
OF RAVENNA, RAVENNA, NEBRASKA,
DEFENDANT AND APPELLEE.
APPEAL FROM THE DISTRICT COURT OF BUFFALO COUNTY.
Hon. Bruno 0. Hostetler, Judge.
MOTION FOR REHEARING OF APPELLANT AND
BRIEF IN SUPPORT THEREOF.
LLOYD KELLY,
B. J. CUNNINGHAM,
Attorneys for Appella n1,
MOTION FOR REHEARING.
The appellant moves the court to vacate and set
aside its findings and decree herein, and grant a rehearing for the following reasons:
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1. The court erred in affirming the judgment of
the district court in dismissing said case.
2. The court erred by not approving the stipulation
signed by the attorneys for the appellant and appellee.
3. The court erred in holding that the bill of exceptions was necessary after the appellant and appellee had stipulated that the transcript should be substituted for the bill of exceptions so far as it included
the evidence considered by the district court in ruling
upon the motion for continuance.
4. The court erred in dismissing the case.
Respectfully submitted,
LLOYD KELLY,
B. J. CUNNINGHAM,
Attorneys for Appellant.
4
3
BRIEF IN SUPPORT OF MOTION.
I.
The court erred in affirming the judgment of the district court in dismissal of the case.
Coleman v. Spea.rman, Snodgrass & Co., 68
Neb. 28, 93 N. W. 983.
McFarland v. West Side Improvement Assn.,
47 Neb. 661, 66 N. W. 637.
The court erred by not approving the stipulation signed
by the attorneys for the appellant and appellee.
Hobson v. ITualable, 79 Neb. 340, 116 N. W.
278.
Williams v. Miles, 62 Neb. 566, 87 N. W. 315.
A
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The court erred in holding that a bill of exceptions was
necessary after the appellant and appellee had stipulated
that the transcript should be substituted for the bill of
exceptions in so far as it included the evidence considered by the court in ruling upon the motion for continuance.
In re Page, 89 Neb. 299, 131 N. W. 280.
Rich v. State National Bank, 7 Neb. 201.
Behrends v. Beyschlay, 50 Neb. 304, 69 N. W.
835.
ARGUMENT.
This appeal was taken from the ruling of the
District Court of Buffalo County, denying a motion
for continuance, which motion was supported by an
affidavit and doctor's certificate, and a counter-show-
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4
ing supported by an affidavit made by one of the attorneys for the appellee.
The clerk of the district court has copied the motion,
affidavits, and doctor's certificate filed by the appellant,
and also the affidavit which constituted the countershowing of the appellee.
The journal entry certified to by the clerk of the
district court contains the following statement made
by the court:
"Upon due consideration of the application for
continuance and of the counter-showing, the court
finds," etc.
There could be no question in view of the above
record, but that the court considered the affidavit and
certificate in support of the motion and the affidavit
made in support of the counter showing. The court's
own language in the journal entry explicitly shows this
fact. The appellant herein is only asking this court
to review the affidavits and certificate which the trial
court admits it has reviewed and considered. Attorneys
for appellee in their brief, admit that the affidavits
were filed and considered by the court and argue to
this court that the showing for continuance was insufficient; appellant contends that the affidavits submitted were sufficient and that a continuance should
have been granted.
Appellant therefore respectfully requests this court
to pass upon the same motion which the district court
overruled; to consider the motion on the same affidavits
and certificate which the trial court considered, and the
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5
affidavits and certificate are copied in full and set
forth in the transcript certified by the clerk.
In support of the opinion filed by this court in the
above case, this court cited the case of Travellers Insurance Company V. Sawicka, 239 N. W. 726. The
evidence in that case was not presented to this court
either by bill of exceptions or by transcript and the
court in its opinion in the Sawicka case, used the following language:
"There is no bill of exceptions. We are not advised as to what evidence was presented for the
appointment of a receiver or upon the motion to
vacate."
In the Sawicka case no record of the evidence was
presented to this court, while in the present case, a
complete copy of the motion and affidavit in support
thereof and the affidavit supporting the counter-showing
is set out in full.
In the case of Doan v. Adcock, also cited by this
court, there was no bill of exceptions and the transcript contained only the pleadings, the rulings of the
court and the verdict of the jury, while in the present
case the transcript contains all affidavits and certificates, etc. The court also cites the case of the First
Trust Company v. Glendale Realty Compawy, 125 Neb.
283, 250 N. W. 68. That case was a foreclosure of a
mortgage; the property was sold on April 19, 1932, sale
confirmed April 30, 1932. Motion for deficiency judgment, answer and objections filed May 12, but on May
17, an affidavit and additional transcript was permitted to be filed by the court and this court in its
opinion, says:
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"At no place in the bill of exceptions filed in
this case does it appear that this affidavit, or the
evidence contained therein was offered or received
as proof on the hearing of this case in the district
court."
Certainly the record in that case cannot be compared to the record in the present case in view of the
fact that the journal entries filed by the court specifically state that the application and counter-showing
were duly considered by the court.
This court also refers to the case of Patterson v.
Kerr, 254 N. W. 704. In that case affidavits of jurors
were filed in support of a claim that the verdict of
the jury was a "quotient verdict." The affidavits of
ten jurors were filed by the defendant and affidavits
of the remaining jurors filed by the plaintiff. It appears that the affidavits filed by the plaintiff were
omitted from the bill of exceptions and the court therefore refused to pass on the question of the quotient
verdict for the reason that a material part of the
evidence had been omitted from the bill of exceptions.
The present case differs from all the eases cited by
the court in that in each of said cases, some part of
the evidence or affidavits were omitted from the transcript or bill of exceptions. There is no claim in this
case that any part of the evidence on which the trial
court based his decision, is missing, but on the other
hand, it is conclusively shown that all of the affidavits
were copied in full and included in the transcript
so that this court may pass on identically the same
motion and affidavits as passed upon by the district
court.
....11111111
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All of the above cases are clearly distinguishable
from the case at bar. In the present case, the evidence upon which the court based its ruling has been
presented in the transcript; no objection was raised
by the attorneys for the appellee; the questions of
law based on those affidavits have been extensively
briefed by the attorneys for the appellees and after
the court had called the attention of the attorneys
that a bill of exceptions would be required, attorneys
for the appellees stated that they desired that the
appeal be decided upon the evidence contained in the
transcript which ought to be sufficient proof that the
affidavits upon which the district court based its ruling,
had been preserved in the transcript and presented to
this court. We do not understand why this court should
desire to raise and stand upon a technicality which
was not raised or urged by any of the attorneys in
the case. Submitting, however, to the court's views
that such a technicality should be permitted to stand
and if this court is still of the opinion that a bill of
exceptions should have been filed, we feel certain that
this technicality was removed by the stipulation in
writing signed by the attorneys for the appellant and
appellee and filed with. the court at the time of the
oral argument to this court on the questions involved
in this case. The said stipulation was reduced to
writing, signed by the attorneys for the appellee and
provided that the transcript containing the affidavits
and certificates filed in this case should be substituted
for the bill of exceptions and the case be considered by
this court upon the affidavits and evidence certified to
in the transcript.
If there remained any doubt in the mind of the court
as to whether the affidavits and certificate included in
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8
the transcript were the identical ones considered by
the lower court, that doubt should be removed by the
above stipulation, and if there was any further question as to whether the record as shown by the transcript included all of the evidence considered by the
court and ruling upon the motion, it surely was met
and fully satisfied by the stipulation.
This court has held that if a defective transcript is
signed, its defect may be waived by the attorneys for
the parties, in the supreme court.
Coleman V. Speerman, 93 Neb. 939.
This court has also held that a defective bill of
exceptions may be waived by the parties in this court.
Yates v. Kearney, 37 N. W. 590.
McFarland v. West Side Improvement Assn.,
66 N. W. 637.
If the parties to a suit can waive defects in a transcript or bill of exceptions by failure to object to the
defects or by affirmative acts or acquiescence, certainly they ought to be able to cure a defect by a
written stipulation filed in this court, especially when
such facts agreed to in the stipulation are supported
by a certificate of the clerk of the district court as
being correct and further supported by journal entry
signed by the district judge to the effect that he based
his ruling upon the motion to which were attached
the affidavits and counter-showing, all of which is set
out in the transcript and stipulated by the attorneys
for the appellant and appellee as being correct.
Certainly no injustice can result to anyone interested
in the case by the court's approval of the stipulation
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Federal Reserve Bank of St. Louis
9
filed herein. This court should be willing to consider
this case upon the record before it, when all of the
parties concerned are willing that the case may be decided by this court upon the record as stipulated.
We respectfully urge that a rehearing be granted;
that the stipulation herein filed be approved by the
court, that the case be decided upon the record now
in this court, and that the judgment be entered herein
in favor of the appellant, which judgment we feel is
supported by the record and the affidavits filed with
the motion of the appellants in the district court.
Respectfully submitted,
LLOYD W KELLY,
B. J. CUNNINGHAM,
Attorneys for Appellant.
