63 Neb. 59 | Neb. | 1901
On-the 17th day of January the News Publishing Company, a corporation engaged in publishing a newspaper and in the job printing business in Lincoln, in this state, executed and delivered to Hector H. Tyndale a chattel mortgage upon all its tangible property, bills receivable, choses in action, and effects, to secure the payment of an indebtedness from it to the mortgagee of f6,000. Manual delivery of the mortgage Avas on the same day made- to Troilus H. Tyndale as agent for Hector; but the instrument Avas not filed for record until the 12th day of the following March, and the mortgagor remained in possession, conducting the business as its own until the 16th day of the next October, when the mortgagee Avent into possession. On the 5th day of November, 1896, the Carpenter Paper Company recovered a judgment against the News Company and began proceedings in garnishment against ■one Sam E. Loav, Avho was a member of the latter company, and also the clerk of the district court, and afterwards supplemented the proceedings by an action im equity, seeking to compel Loav to account for, and pay over to the plaintiff, certain sums of money alleged to have been collected by Loav from litigants in his court as compensation to the News Company for publishing in its paper notices required to be published in legal proceedings. The pleadings undemvent some mutations Avhich need not to be recited in detail, and it is sufficient to say that the cause Avas finally tried and submitted to the court, pursuant to a stipulation of the parties, upon a petition by the Paper Com
. The court by its judgment found the “facts generally in favor of the plaintiff and against the defendant, and that as a matter of law the plaintiff is entitled to the relief prayed in his petition.” At the request of the defendants, the court also made a series of special findings of fact, some of which may be regarded as inconsistent with the general finding, and one of Avhich is complained of as defective and insufficient, because of a failure to find Avhether the debt, or any of it, to the -plaintiff, was contracted during the time the mortgage was being withheld from the record; but there is no evidence that it was so contracted. That the point would be immaterial if the mortgage Avas assailed solely for the reason that it Avas omitted for a time from record, was definitely decided by this court in Forrester v. Kearney Nat. Bank, 49 Nebr., 655. The Paper Company did not recover its judgment until nearly eight
It is recommended that the judgment of the district court be reversed and that the action be dismissed at the costs of the appellee.
By the Court: For the reasons stated in the foregoing . opinion, it is ordered that the judgment of the district court be reversed and that the action be dismissed at the costs of the appellee. •
Reversed and dismissed.