34 Neb. 376 | Neb. | 1892
This was an action in the district court of Franklin’ county by the defendant in error against the plaintiffs in error, defendants below, Eli Brown, sheriff, and the sureties on his official bond as sheriff for said county. The cause
“Your referee finds from the pleadings and testimony offered, and the admission of the parties hereto, all of which are of record, the following facts:
“First — That the firm of A. M. Williams & Co., composed of A. M. Williams, the plaintiff in this case, and G. E. Williams, was and had for some years been doing business as merchants in the town of Riverton, Franklin county, Nebraska, and that on the' second day of January, 1888, the estimated value of the stock on hand belonging to said company, amounted to thirteen thousand dollars, and the debts against said firm were estimated to be eight thousand dollars. ,
“Second — That on January 2, 1888, the said firm of A. M. Williams & Co. sold said stock and business to S. S. Elder, and took in exchange therefor the notes of that date executed by the said S. S. Elder* and payable to the plaintiff in this case, A. M. Williams, as follows, to-wit: One note for $456.08, due in two years, with ten per cent interest; one note for $1,000, due in two years, with ten per cent; one note for $1,000, due in two years, with ten per cent. Said S. S. Elder also conveyed real estate to the plaintiff of the estimated value of $2,000 and assumed to pay the debts of the firm to the amount of $8,000.
“Third — That after said notes were taken, and during the absence of the plaintiff, said notes were left in the possess:on of her attorneys, Sheppard & Black, to attend to tin interests concerning them; that on the 1st day of October, A. D. 1888, at the request of Mr. Black, one*380 of said attorneys, Mr. S. S. Elder made, executed, and delivered to the plaintiff the chattel mortgage marked 'Exhibit A’ in this case, upon the goods in question; which said mortgage was filed for record on the 2d day of October, 1888, at 9 o’clock A. M.; that possession of the said goods so mortgaged was taken by the mortgagee immediately after said mortgage was executed.
''Fourth — That after the mortgage was executed, and before the same was recorded, the said S. S. Elder, on the 2d day of October, A. D. 1888, made an assignment of all his goods and chattels (including the goods in controversy) for the benefit of all his creditors. This assignment was drawn by the said Mr. Black, of the said firm of Sheppard & Black, and by him filed for record October 2, 1888, at 9 o’clock 30 minutes A. M.
“Fifth — That the aforesaid Brown was, at the time when these transactions occurred, the sheriff of said Franklin county, and' the other defendants were his sureties, with the bond in the usual form.
“Sixth — That on the 8th day of October, 1888, the said sheriff, Eli Brown, took possession of said goods without the consent of the said plaintiff, under and by virtue <.f said assignment, and proceeded to invoice, advertise, and sell the same, and did sell to the amount and value of $3,400; that on the 12th day of October, A. D. 1888, the, county judge of said county fixed, upon October 25, A. D. 1888, as the time of presenting claims against said estate by creditors, under the assignment act, and that on that day the said plaintiff by her attorneys presented her said claim of $2,456.08 for allowance under the provisions of said assignment.
“Under the above state of facts the referee, as conclusions of law and fact, finds:
“First — That the said mortgage given on the 1st day of October, 1888, from the said S. S. Elder to the said plaintiff was made in good faith to secure a valid debt, and said*381 mortgage is and was a lien upon said property to the amount of the plaintiff’s claim therein named.
“Second — That the said defendants in taking said property acted without authority of law, and in so doing became liable to the plaintiff to the amount of her interest in said property.
“Third — That there was due to the said plaintiff on the 8th day of October, A. D. 1888, from the .said S. S. Elder, the sum of $2,456.08, together with interest thereon from January 2, .1888, at ten per cent per annum; making, in the aggregate, $2,619.86; and that the said plaintiff should have and recover of and from the said defendant the said sum of $2,619.86, together with seven per cent interest from the said 8th day of 'October, A. D. 1888.
“All of which is respectfully submitted.
“O. J. Dilwojrth, Referee.”
On the coming in of said report exceptions were taken thereto on the ground that the referee had no jurisdiction to try said case at the time of the alleged trial, which was overruled. The report was confirmed and judgment entered in accordance with the recommendation of the referee. Subsequently a motion was made for a new trial for-the reasons: First, the court erred in confirming said report; second, the referee had lost jurisdiction of the case at the time of the trial of the case before him and had no authority to hear the evidence or decide or report upon the same; third, the confirmation of said report is contrary to law; fourth, the judgment is contrary to law and is not supported by the evidence; which motion was overruled and exceptions taken.
The objection that the referee’s findings are not supported by the evidence cannot be considered, the evidence not having been preserved in the form of a bill of exceptions. The questions remaining are two only: First, Had the referee jurisdiction? In other words, had he lost jurisdiction by failing to try and report in accordance with the
The next question presented, whether the referee’s conclusions of law,and the judgment in accordance therewith," are supported by the findings, involves the real contention of the parties, viz., is the mortgage of plaintiff below void under the provisions of the assignment law. The provisions of the assignment law, chapter 6, Compiled Statutes, essential to a consideration of the question presented, are found in sections 43 and 44, as follows:
“Sec. 43. [Preferring creditors.] — If a person, being insolvent, or in contemplation of insolvency, within thirty days before the making of the assignment, with a view to' give a preference to a creditor or person who has a claim*383 against him, procures any part of his property to be attached, sequestered, or seized on execution, or makes any payment, pledge, assignment, transfer or conveyance of any part of his property, either directly or indirectly, absolutely or conditionally, the person receiving such payment, pledge, assignment, transfer, or conveyance, or to be benefited thereby, having reasonable cause to believe such person is insolvent, or in contemplation of insolvency, and that such payment, pledge, assignment, or conveyance is made in fraud of the laws relating to insolvency, the same shall be void, and the assignee may recover the property, or the value of it, from the person so receiving it or so to be benefited.
“ See. 44. [Clerks’ and servants’ wages.] — Nothing in this act contained shall be construed so as to prevent any debtors from paying or securing to be paid any debt not exceding the sum of one hundred dollars, for clerks’ or servants’ wages, or from paying or securing any debt which shall have been created within nine months prior to the date of such payment, or securing or to effect any mortgage or security made in good faith to secure any debt or liability created simultaneously with such mortgage or security, provided any such mortgage shall be filed for record in the proper office within thirty days from its date.”
It will be observed that it is not every act of preference by an insolvent debtor or one contemplating insolvency which is declared to be void by the provisions of section 43. That section has reference only to those payments, conveyances, assignments, etc., where the party to be benefited thereby has reasonable cause to believe that such debtor is insolvent or contemplating insolvency, and that such payment, assignments, conveyance, etc., is made in fraud of the laws relating to insolvency. The finding of the referee upon the question of the good faith or fraudulent intent of the parties to the mortgage must be regarded as conclusive. That question was, we will presume, fairly
The report of the referee is silent upon the question of the knowledge of 'the plaintiff below of the insolvency of the mortgagor Elder at the time she accepted the mortgage. Nor is there any finding to the effect that Elder was in fact insolvent or contemplating insolvency at the time the mortgage was executed. There are no facts found by the referee from which we can infer that the plaintiff below was guilty of any fraudulent intention in accepting the security in question or had knowledge of any such fraudulent intention on the part of Elder, the mortgagor. As
It is urged by counsel for plaintiff in error that in computing time the statute contemplates lunar and not calendar months. If this contention can be sustained it is.plain that the mortgage in controversy cannot be brought within the exception contained in section 44. When months are mentioned in a statute in prescribing the time within which an act shall be done it is understood to mean calendar and not lunar months. (Maxwell’s Practice in Justice Courts [5th Ed.], 769; Glore v. Hare, 4 Neb., 132; 15 Am. & Eng. Encyc. of Law, 712, and note.) It is apparent that the debt in this case, according to the finding of the referee, was created within nine calendar months prior to the assignment. The judgment on the findings of the referee is right and should be
Affirmed.