42 Neb. 660 | Neb. | 1894
On the 7th day of January, 1891, Cox & Cornell, a firm doing business at Wahoo, executed and delivered to the Peoria Manufacturing Company a promissory note in the sum of $743.90, with eight per cent interest from date, payable on the 1st day of May following. On the 30th day of March, 1891, this action was commenced by thedefendant'in error in the district court of Saunders county to recover the sum secured by said promissory note although the same was to become due thereafter. At the time of the commencing of the action an affidavit for an attachment was filed with the clerk of the said district court, and upon the same day the following order authorizing a writ of attachment to issue in said cause was entered upon the journal of said court, to-wit:
“Now, on this day, upon application of the plaintiff, the Peoria Manufacturing Company, and it appearing from the affidavit of C. A. Atkinson, an attorney of record of said plaintiff in said case, that the claim of the Peoria Manufacturing Company is just, and that there is cause for granting an attachment in the sum of $759.90, and $50 probable costs in the case, an attachment is therefore allowed to issue in this case, upon the plaintiff giving an undertaking for the sum of $1,500, with approved security, as required by law. William Marshall,
“ Judge.”
On March 31,1891, the defendants filed a motion to dissolve the attachment on the following grounds:
2. That the names of the defendants are not set forth in the affidavit for attachment, nor in the order of attachment, nor elsewhere in the record.
3. The facts stated in the affidavit are insufficient.
4. That the affidavit is untrue.
The motion was heard upon the affidavits of the defend- . ants and the counter-affidavits submitted by the plaintiff, and on June 1, 1891, the court overruled said motion, to which ruling the defendants took exception.
On June 3, 1891, the defendants filed a demurrer to the petition, alleging:
1. That there is a defect of parties defendant.
2. That no defendant is named in the petition or proceedings.
3. That the petition does not state sufficient facts to constitute a cause of action.
This demurrer was on the same day overruled, and subsequently each of the defendants filed a separate answer alleging, in substance and effect, that the firm of Cox & Cornell had been dissolved, by mutual consent of all the members thereof, more than a month prior to the institution of this suit, and that notice of dissolution was given plaintiff within a week after the same occurred, and praying that the action be dismissed, or that the plaintiff be required to prosecute the same against the persons formerly composing said partnership, to-wit, Joseph M. Cox and 'George H. Cornell.
To each answer the plaintiff interposed a general demurrer, which was by the court sustained, and judgment was entered in favor of the plaintiff on January 25, 1892,. for the sum of $808.99, and the sheriff was ordered to sell the attached property, and apply the proceeds arising therefrom in satisfaction of said sum, interest and costs.
We will first consider whether there was any error in the
We next consider the contention of the plaintiff in error, that the court erred in refusing to discharge the attachment. The second and third grounds contained in the motion to vacate the attachment not being now relied upon will be deemed waived, and hence the first and fourth grounds of the motion alone will be examined. Was the order of attachment granted without jurisdiction or authority? This court will take judicial notice of the fact that on and prior to the 30th day of March, 1891, the date on which the writ
It remains to be considered whether the last ground contained in the motion to dissolve the attachment was well taken. There is absolutely no controversy as to the facts. It appears that the firm of Cox & Cornell was composed of Joseph M. Cox and George H. Cornell, and that the said firm continued in business up to about the 20th day of February, 1891, when by mutual consent the partnership was dissolved and the property of the firm, consisting chiefly of wagons and buggies, and for which the note sued on was given in part payment, was -divided between the partners with the intention, and for the sole purpose, of enabling each, if possible, to claim the property as transferred to him as exempt under the exemption laws of the state, and thereby defeat the collection of plaintiff’s claim. At the time of the division of the property as aforesaid the firm, and each member thereof, was insolvent. Subsequently, judgments were recovered against Cox & Cornell by two of their creditors, upon one of which an execution was issued and levied upon certain property which had been divided as aforesaid between the members of the firm; and the said Joseph M. Cox and George H. Cornell each filed an affidavit in the court from which the execution issued, claiming the property so levied upon as exempt. There is no evidence that the property was divided between the partners in proportion to the share or interest of each in the firm assets. The question for consideration is whether there was a disposition of the property of the partnership with fraudulent intent to cheat and defraud the
Judgment affirmed.