4 Dakota 167 | Supreme Court Of The Territory Of Dakota | 1886
This action was brought to recover damages for the alleged conversion of certain personal property claimed by the plaintiff, and which the defendant, as sheriff of Hughes county, seized under sundry warrants of attachment against the property of MacMahon & Co. The firm of MacMahon & Co., doing business at Pierre, consisted of
It is claimed that this bill of sale was intended as a mere
MacMahon continued in the store; the clerks were to go on and sell the goods in the usual way; nothing was said about reducing prices; no inventory of the goods was taken; MacMahon’s sign was not taken down, — in fact, nothing was done in any way to change the outward or inward appearance of the manner of conducting the business, except that Mr. Carlin, as agent for the bank, was quietly put in charge, and he was to remain in charge only until the bank was paid, and then, according to the parol agreement, the bank’s interest ceased. The anxiety of the bank people, and their diligence in looking after the interest of the bank, and the acknowledgment that they did not deem the bank sufficiently secured by the chattel mortgage, and the manner and circumstances under which the bill of sale was procured, and all the admitted facts, show they were aware of the failing or embarrassed circumstances of MacMahon & Co. The defendant attached said property on July 13th, and it is admitted said attachment proceedings are regular.
The only error assigned is the action of the court in directing the verdict. We are of the opinion that the entire transaction was an assignment by MacMahon & Co. to the bank; and, whether in name a “mortgage” or “bill of sale,” there was no delivery of the property, — there was a secret trust for the benefit of MacMahon & Co. If considered as a mortgage, it was fraudulent and void in law as against creditors. When the mortgagor, by an arrangement, express or implied, is permitted to continue in possession of, and sells, a mortgaged stock of goods, shifting in their na.ture, at retail, for his own
The necessity of moving for a new trial in the court below, to obtain a review of the whole case is the remaining question. Section 22, Code, sup. 2, provides the supreme court may review upon appeal every actual determination; among others enumerated, an order which grants or refuses a new trial. Sub. 5 provides an appeal cannot be taken before the final determination of the action in which the order is made; “but upon the final judgment or decision being rendered, the appellant, on his appeal from such final judgment or decision, may have any intermediate order enumerated in this section reviewed by the supreme court, by designating such order sought to be reviewed, in his notice of appeal from the final judgment or decision. ”
The practice, as indicated by Section 288 of Code, is that a party intending to move for a new trial must, within ten days after the verdict of the jury, if the action was tried by a jury, or after notice of the decision of the court or referee, if the action ;was tried without a jury, serve upon the adverse party a notice of his intention to move for a new trial, designating the