26 Neb. 266 | Neb. | 1889
On the 10th day of May, 1888, the plaintiffs in error commenced an action in the district court of Cass county, to recover from the defendants in error the sum of $933-upon an account for merchandise sold and delivered, upon which account the sum of $425 was, at the commencement of the action, past due, and the sum of $508 was to become due on the 15th day of May, 1888. At the same time the plaintiffs in error filed in said action an affidavit
On the 9th day of August, 1888, the defendants in error filed their motion to vacate the plaintiff’s order of attachment, and discharge the same for the reasons:
■ 1. That the court had no jurisdiction to make the order
from the records presented.
2. That the affidavit on which the order was granted, states no fact or facts justifying an order of attachment.
3. That there was no bond given as required by law, the indebtedness shown as $933 and the bond for $1,666.
4. That the order of attachment was improvidently granted.
5. That the allegations of the affidavit, on which the attachment was sought, are false and untrue.
6. That at the date of the suing out of the attachment, the plaintiffs had already commenced, and there was pending, an action between the parties for the recovery of the same indebtedness upon which orders of attachment had been issued and lands seised, in the district court of Smith county, in the state of Kansas, sufficient to pay the debt, which action is still pending and in no manner released.
On the 22d day of August following, this motion was argued and heard before the district judge of Cass county, and it was ordered that the attachment heretofore granted be vacated and discharged, and the sheriff ordered to return all the property'taken under the attachment, and the garnishee released from all liability in this action'.
To the order of the court sustaining the motion and dis
1. The court erred in sustaining the motion to discharge the attachment.
2. In ordering that said attachment be vacated and discharged.
3. The order vacating and discharging said attachment-is not sustained by the affidavits filed to support the same..
The first, second, third, and fourth grounds of defendants’ motion, on'which the plaintiffs’ order of attachment was dissolved, was doubtless abandoned before the district, judge. The third was based upon a mistake of fact, the ground of objection therein against the bond being untrue..
As to the sixth ground of objection, without expressing an opinion upon the point, I deem it sufficient to say that the evidence introduced to establish it, fails to show that the proceedings in Smith county, Kansas, had been commenced or were pending at the time of the commencement of these, proceedings here sought to be dismissed.
The fifth point was the only one argued at the bar of this, court, and to it our discussion will be confined.
The allegations of the affidavit for attachment, called in-question and put in issue by the fifth ground of the motion^ are that the defendants are about to sell, convey, and otherwise dispose of their property, with the fraudulent intent, to defraud and cheat their creditors, and to hinder and delay them in the collection of their debts, and have sold, conveyed, and otherwise disposed of their property, with the-fraudulent intent to cheat and defraud their creditors, and to hinder and delay them in the collection of their debts.
It is not contended by the plaintiffs in the argument that the defendants were about to make, or contemplated making, any other or further disposition of their property than that which they had already made by the execution of the chattel mortgages.
The case therefore does not come within the provision of section 14, chapter 32, of the Compiled Statutes, but must be construed in reference to the provisions of section 11 of said chapter, that: “ Every sale made by a vendor, of goods and chattels in his possession or under his control, and every assignment of goods and chattels by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things sold, mortgaged, or assigned, shall be presumed to be fraudulent and void as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith; and shall be conclusive evidence of fraud,' unless it shall be made to appear on the part of the persons claiming under such sale or assignment, that the same was made in good faith, and without any intent to defraud such creditors or purchasers.”
The question is, therefore, whether the sale or assignment of said goods and chattels by way of mortgage or security, was accompanied by an immediate delivery and followed by an actual and continued change of possession of the
The evidence presented to the district judge upon the hearing of the motion to dissolve the attachment, was directed primarily to the question of the immediate delivery and the actual and continued change of possession of the goods, but might have been, and probably was, considered by him also as bearing upon the question, whether the sale or assignment was made in good faith, and without any intent to defraud any of the creditors.
The defendants presented the affidavit of the defendant Isaac Nathan. In this testimony, the affiant, after setting forth facts and circumstances concerning the defendants’ business at the city of Plattsmouth, and at the town of Eairmont, states that their losses by fire at Fairmont amounted to $30,000, on which there was an insurance of $10,000, and no more; that their stock of goods at Plattsmouth amounted to about,$12,000, which, with the amount of the insurance on that lost by fire, constituted their only available assets to meet an indebtedness of $33,000; that their creditors, becoming alarmed, began to urge an immediate settlement and payment; that among
They also presented the affidavit of M. A. Hartigan, who» testified that he was well acquainted with the defendants, as-the First National Bank of Plattsmouth, for which affiant, had been the attorney; that about the time the mortgages given by defendants bear date, Mr. Waugh, an officer of the bank, came to affiant and informed him that defendants were-in financial trouble; that by reason of the fire at Fairmont^ they had been crippled financially; that they were in debt to the bank; and wished affiant to secure the claim, and to-act promptly, which affiant proceeded to do; that affiant went to Mr. Nathan, the other partner, Solomon, being-
They also presented the affidavit of James Finley, who
The affidavit of David McEntee states that he is an employé of the First National Bank of Plattsmouth ; that on the next morning after the date of the mortgage by Solomon & Nathan to the said bank, he was placed in charge of the stock of goods by and for the bank, with James Finley, the former clerk of the firm ; that affiant prepared a notice that “ this store and stock is in the hands of mortgagees,” and placed it where it could be seen by any one approaching the cashier’s desk. The stock was in affiant’s charge until Mr. Glass was placed in the store; the keys were given to affiant, who held them while in the store, and afterwards were in the bank until August 15.
On the other hand, the plaintiffs presented to said district judge, at said hearing, on their part, the affidavit of Eugene Montgomery Esq., of the law firm of Montgomery & Jeffrey; of Omaha, the resident attorneys of the plaintiffs, stating that on May 8, 1888, his firm received a dispatch from Moses & Newman, attorneys at law, of Chicago, the residence of the plaintiffs, instructing affiant’s firm to go at once to Plattsmouth, to look after the plaintiffs’ claim for goods and merchandise, sold to defendants, amounting to $934.33. On May 9th, affiant went to Plattsmouth and sought out defendants at their place of business ;* saw the defendant Nathan, who, from all appearances, was in charge of the business, without any evidence or indication that defendants were not then in possession of said stock of goods and selling the same in their own interests, in the usual course of business, though affiant carefully noted the surroundings for the purpose of determining, without special
*276 Affiant says that he remained in Plattsmouth throughout the day of May 10; that at frequent intervals he passed and repassed the store building wherein defendants had their stock of goods mortgaged as mentioned, and where they were doing business; that he frequently stopped at the door and carefully noted the condition of things therein
Also the affidavit of P. P. Gass: That he is a resident of Plattsmouth; that on May 12, 1888, he was employed to represent the First National Bank as its agent in taking charge of the receipts of sales of the stock of goods and merchandise mortgaged by defendants; that in that capacity and for that purpose he attended the store daily where the stock was kept, except when the store was not kept open, until July 13, 1888, when his employment ended; that he did not have the keys to the store doors, but
Also the affidavit of Exa Bee Critclifield, the deputy clerk of Cass county, that the index of chattel mortgages in her office shows that on May 9, 1888, three chattel mortgages were filed, given by Solomon & Nathan on their stock of goods and merchandise in Plattsmouth; the first to the First National Bank of Plattsmouth for $5,000, the second to James Finley, for $500; arid the third to Fanny Nathan, Lee Sanders, and Simon Seelig, jointly, for $5,500, all of which were dated April 17, 1888; that the same were, on August 10, 1888, released upon the index of chattel mortgages, and the instruments themselves lifted.
Also the affidavit of C. W. Sherman, stating that he is one of the proprietors of the Plattsmouth Journal; that on July 26,1888, at the request of Mr. Nathan, of the firm of Solomon & Nathan, there was printed the following advertisement : “ Farewell. Great closing-out sale. On account of the death of Mr. Solomon, and the settlement of the estate being necessary, September 1, 1888, will terminate our business career of nineteen consecutive years in the city of Plattsmouth.
“We herewith extend to our many friends our sincere thanks for their generous patronage during these many years, and we now propose to give our farewell bargain sale.
“We accordingly offer our entire stock of dry goods, millinery, carpets, rugs, oil cloths, mats, crumb cloths, ladies’, misses’, and children’s cloaks and winter wraps, plush garments, blankets, flannels, yarns, black and colored g. g.
There were also before the district judge, as a part of the record in the case, the affidavits of Eugene Montgomery, made as one of the attorneys for the plaintiffs, in one of which he stated that he had “good reason to believe, and does believe, that the First National Bank of Plattsmouth, Nebraska, has property of the defendants in its possession, to wit: certain dry goods, notions, millinery stock,and other property to the affiant unknown; ” and in the other of which it is also stated that he has “good reason-to believe, and does believe, that James Finley, Fanny Nathan, Lee Sanders, and- Simon Seelig, have property of the defendants in their possession, to wit, a stock of goods, the nature and extent of which are to the plaintiffs unknown.”
. Section 20 of the chapter above cited provides: “That the question of fraudulent intent arising in all cases under the provision of this chapter shall be deemed a question of fact and not of law.” * * *
As we have seen, there were two questions before the district judge for his determination— one as to the immediate delivery and continued change of possession of the mortgaged property, and the other as to the good faith of the transaction — both of which are essentially questions of fact, and either one of which, if held to be in favor of defendants, is conclusive of the case.
The testimony of Montgomery as to the situation of the defendants’ affairs at their store in Plattsmouth, at or about the time of issuing the order of attachment, constitutes the
I will not comment upon the above evidence further than to say that I think there is sufficient to uphold the district judge, and follow the rule so often laid down and maintained that the finding of questions of fact by a trial court or jury will not be reversed where the evidence is conflicting, unless clearly wrong or manifestly unjust.
The order of the district judge will be affirmed.
Judgment accordingly.