63 Neb. 130 | Neb. | 1901
This suit is a creditors’ bill brought by the Farmers’ & Merchants’ National Bank of Galva, Illinois,in the district court of Lancaster county, against Oharles W. Mosher and Richard O. Outcalt and some twenty-nine other defendants, referred to hereinafter by name as occasion requires. Its object is to set aside certain conveyances of real and personal property claimed to have been made by Mosher and Outcalt in fraud of their creditors, and also to subject certain stocks alleged to be owned by them, in various corporations, to the payment of plaintiff’s judgment. A number of the defendants named in the bill filed answers and cross-petitions, setting up their respective claims to priority upon the property sought to be reached, and praying for general equitable relief. From a finding and judgment adverse to the claims of plaintiff, and also to defendants the Dixon National Bank, the People’s National Bank and the La Salle National Bank, the plaintiff and the defendants above named have brought the case to this court by appeal, and the defendant, Kent K. Hayden, receiver, has brought the case to this court on error. The facts which form the basis of
It is conceded that the attachment and garnishment levied by the Dixon National Bank and the People’s National Bank is prior to the attachment and garnishment of the plaintiff, and that the attachment and garnishment of the plaintiff is prior to that of the La Salle National Bank.
The Farmers’ & Merchants’ National Bank insists there are three funds out of which it is entitled to be paid the amount of its judgment. These will be considered in the order of their presentation in the briefs:
First, it is contended that 350 shares of stock of the Lincoln Gas Company transferred by Mosher on January 22, 1893, to C. O. Whedon and C. E. Magoon should be applied in payment of its judgment. The gist of this contention is that the consideration- for the transfer, being largely for services to be performed in the future, is void as to existing creditors. The facts out of which the controversy between the plaintiff and Whedon and Magoon arises are as follows: On the day prior to the suspension of the Capital National Bank of Lincoln, on January 23, 1893, C. W. Mosher, who was president of said bank, employed Whedon and Magoon as attorneys to defend him
The second fund out of which plaintiff asserts its judgment should be paid is certain dividends accruing to Mosher and Outcalt, and placed to their credit on the books of the gas company upon- capital stock standing in their names upon the books of said company. It appeared that the capital stock of the gas company had been largely increased since its organization, and in order to distribute pro rata among its stockholders this increase of capital stock, the old shares were called in by the company for cancelation, and in lieu thereof new shares in the increased amount were issued to the holder. To illustrate: a stockholder having $25,000 of old issue was entitled, on surrendering his shares, to receive $45,000 of new issue. Upon the basis of new issue, Mosher was entitled to receive 2,580 shares and Outcalt 970 shares. At the time of the garnishment Mosher had received all of the shares to which he was entitled, as shown by the books, except 464 shares, and these were withheld, pending the surrender of the old shares. Of these shares claimants have appeared for all
The third fund out of which plaintiff contends it should be paid is certain real and personal property which it is alleged was fraudulently transferred to D.. E. Thompson. As affecting this branch of the case, the record discloses that on November 14,1891, Thompson sold to Mosher and Outcalt 180 shares of stock in the Capital National Bank for $22,500 and in. payment thereof took the note of Mosher and Outcalt for said amount payable five years after date. To secure the payment of this note 200 shares of stock of the Lincoln Gas Company were assigned to Thompson as collateral security. This stock was held by him until December, 1892, when, by agreement between Mosher and Thompson, the gas stock was surrendered and in lieu thereof certain lands in York and Lancaster counties were deeded to Thompson. These lands were given as security
Kent K. Hayden, receiver, seeks to- review tbe judgment of tbe trial court by proceeding in error, but tbe record discloses that be filed no motion for a new trial. Tbe rule is well established in this state that to obtain a review of a case on error in this court a motion for a new trial must' have been filed and tbe errors relied on specifically pointed out to the' district court. Harrington v. Latta, 23 Nebr., 84; Cruts v. Wray, 19 Nebr., 581; Hansen v. Kinney, 46 Nebr., 207.
There are a number of other questions argued in tbe voluminous and numerous briefs of counsel representing tbe different interests in this case, but in our view tbe foregoing opinion sufficiently reviews tbe important questions presented. We have carefully examined tbe record and in our opinion it sustains tbe finding and judgment of tbe lower court.
We therefore recommend that tbe judgment be affirmed.
By tbe Court: For tbe reasons stated in tbe foregoing opinion, tbe judgment of tbe district court is
Affirmed.