79 Neb. 435 | Neb. | 1907
On March 8, 1905, the defendant Jacobs made to a bank in Iowa his promissory note for $1,300, due in one year, which the plaintiffs Danker signed as surety. In October following the plaintiffs paid the principal of the note and interest earned up to that date to the bank, which thereupon indorsed and delivered the note to the plaintiffs. They, in December, 1905, began this action, procuring an order from the county judge of Sarpy county allowing an attachment under the provisions of section 237 of the code, permitting that remedy to creditors on claims before due in certain cases, and caused the same to be levied upon lands standing in the name of Jacobs in Sarpy county. ' Jacobs had purchased the land of one Rihner, who before this date had brought a suit in equity to cancel the conveyance on the ground that the same was obtained from him by fraud. This suit was pending at the date of the attachment, and ivas afterwards determined in favor of the plaintiff, in a decree which provided that, if the attachment in this Suit should be sustained, it should in such case be deemed a lien upon said land. Rihner intervened in this action and moved to discharge the attachment, but his petition of intervention was denied
1. It is settled that a claim of ownership in, or a lien upon, the property attached gives the claimant no right to intervene and move for a dissolution of the attachment. Kimhro v. Clark, 17 Neb. 403; Meyer v. Keefer, 58 Neb. 220. The intervener cites the case of Deere, Wells & Co. v. Eagle Mfg. Co., 49 Neb. 385. The doctrine of that case is expressly limited to cases where writs of attachment have been levied in different actions on the same property, and the plaintiff in the later case seeks to intervene in the earlier case on a proper showing, not to defend the principal action nor to move to discharge the attachment, but to have the relative priority of the levies adjudicated. He also argues that the act of 1887 (sec. 50a of the code) gives him the right, as a party claiming an interest in the matter in litigation, to intervene. This depends upon the proper definition of the matter in litigation. We understand the matter in litigation in this case to be, not the real estate attached, nor the ownership thereof, but the debt owing by Jacobs to the plaintiffs, and the existence of the facts alleged in their petition for attachment. The interest that entitles a person to intervene must be of such a nature that he will gain or lose by the direct legal operation of the judgment. Smith v. Gale, 144 U. S. 509,
2. The defendant contends that the action cannot be maintained for the reason that the plaintiffs cannot be said to be creditors of the defendant, and in support of this contention invokes the doctrine that, where one of two joint promissors, who is liable directly upon the note for its whole amount, buys such note, the note is necessarily extinguished, and the original contract at an end. This was the rule of the English law before the statute of 19 and 20 Victoria, quoted by the defendant, which provides that, in all cases where the surety pays the debt of another, he shall be entitled to assignment, and to stand in the place of the creditor in any action or other proceeding at law or in equity. But the general American doctrine is more liberal in favor of sureties than the English law before the enactment of that statute. The courts have, in a majority of the American states, accomplished the same result' by judicial decisions, which has been reached in England by act of parliament. In the case of Nelson v. Webster, 72 Neb. 332, in an opinion very fully discussing this question, our own court has adopted the rule of the civil law that the surety is entitled, where he pays the whole debt, not only to the collateral securities taken by the creditor, but he is also entitled to be substituted as to the very debt itself to the creditor by way of cession or assignment. If the bank had not parted with the ownership of the note, it would have been entitled to an attachment before the same became due, in the cases prescribed in section 237 of the code; and it follows under the doctrine above announced that the surety paying the debt before due and taking an indorsement of the note was entitled to the same remedy.
In the defendant’s brief • it is admitted that Jacobs’ absconding might be evidence of his fraudulent disposition of the property, if it had not been for his indictment; but it is argued that his motive in leaving the state was not to defraud a creditor, but to avoid criminal process. The intent to escape the criminal prosecution and the intent to defraud creditors are not inconsistent. On the ■"ontrary, the former is likely in many cases to be the cause of the latter. On the whole, we are satisfied that there was sufficient evidence to support the finding of the trial judge, and that it should not therefore be disturbed.
Since the attachment must be sustained, it becomes unnecessary to consider the errors assigned by the plains'iffs upon their cross-appeal.
We therefore recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.