Kountze v. Scott

49 Neb. 258 | Neb. | 1896

Ryan, C.

On June 12,1893, Walter W. Scott and the firm of Scott Bros, executed a note for $3,000 to the Nebraska National Bank of Beatrice. Before maturity this note was transferred as collateral security to the plaintiffs in error. When this note fell due it was not paid, and subsequently an action, aided by an attachment, was begun for its collection in the district court of Gage county. A motion to dissolve this attachment was made by the defendants on the ground that the facts set forth in the affidavits for attachment were not true, and because such facts as were set forth in said affidavits were not sufficient to warrant the issuance of an attachment. No reliance seems to have been placed upon the last ground alleged, hence we shall consider only the first.

Prom the affidavits submitted by both parties it is left clear beyond question that the firm of Scott Bros, was originally made up of George R. Scott and Walter W. Scott; that this firm was engaged in the undertaking and retail furniture business at Beatrice; that the interest of George R. Scott in property of said firm and in its business was transferred to Walter W. Scott; that afterward, on July 10, 1893, all the merchandise, book accounts, and business of Walter W. Scott were sold and transferred to parties of whom none are joined, by intervention or otherwise, in this action. The motion of Scott Bros, and Walter W. Scott to dissolve the attachment was sustained, and the attachment plaintiffs, by their petition in error, present this ruling for our consideration. That very unsatisfactory results might be reached if the practices adopted in this case are to be sanctioned, is illustrated by the fact that it now appears by an affidavit in this case that one of the parties to whom the transfer was made by Walter W. Scott, in his own name, at some time began an action for damages against the sheriff of Gage county by reason of his wrongful levy of the. attachment under consideration. If Walter W. Scott, in* his own name, herein may urge the rights of his transferee to procure a release of the attached goods, when the overruling of such motion can in no way affect the rights of such transferee, there is in effect given the transferee this safe remedy, in addition to the right, which is unquestioned, to replevy the goods or to sue for their value independently of this action. It was in view of this possible result that the rule was first laid down in McCord v. Krause, 36 Neb., 764, that as between plaintiff and defendant alone, upon motion to dissolve an attachment of the chattels mortgaged, the defendant can be heard only because of his residuary contingent interest which may remain after the said mortgages are satisfied. This principle was subsequently enforced in Landauer v. Mack, 43 Neb., 430, and in Darst v. Levy, 40 Neb., 593. It is urged, however, that in Kilpatrick-Koch Dry Goods Co. v. Bremers, 44 Neb., 863, this court has acted upon a modification of the rule above stated. What was actually held in the case last cited cannot be better expressed than by this language, quoted from the opinion: “The plaintiff in error contends that Bremers had no standing in court to move for the discharge of the attachment, and that the judgment should be, for that reason, reversed. This contention is based upon the fact that the goods had been sold before the motion was filed, and had realized sufficient to pay the mortgages; that, therefore, no interest was left in Bremers, residuary, contingent, or otherwise. It must be remembered, however, that the plaintiff did not attach these goods. It suffered them to remain in the possession of the mortgagees and contented itself with garnishing the latter. This garnishment was founded upon the allegation that the mortgagees had property of Bremers in their possession. If, therefore, no interest remained in Bremers, then the plaintiff gained nothing by this garnishment. In other words, the plaintiff, relying upon its garnishment to reach the proceeds of the sale of the goods, cannot be heard to urge, contrary to the jurisdictional facts necessary to support the garnishment, that Bremers was without interest therein.” Another case cited as recognizing a modification of the rule laid down in McCord v. Krause, supra, is Standard Stamping Co. v. Hetzel, 44 Neb., 105. In ibis case Prank J. Hetzel and Levi G. Hetzel were joined as defendants, and in the petition it was alleged that these brothers constituted a partnership firm, to which, in fact, the goods were sold, though ostensibly purchased by L. G. Hetzel. There was an attachment of merchandise as the property of both defendants. . The motion to dissolve the attachment was by Prank J. Hetzel, in his own name. There was, therefore, a motion by a proper party to the record, who claimed the attached property as his own. In the opinion the feature which distinguished the case relied on from the one at bar was pointed out in the following language: “There was introduced a great deal of evidence which tended, unexplained and uncontradicted, to show that Levi had fraudulently transferred his property to Prank. If the goods had been attached in the hands of Prank, as in reality the property of Levi, placed in Prank’s hands for the purpose of defrauding the creditors of Levi, this would have been competent. But such was not the case; the property was attached as that of both Levi and Prank. It was, therefore, necessary, in view of the plaintiff’s averment that the goods were in reality sold to both, though the transaction was with Levi alone, in his own name, to show that there existed a privity between Prank and Levi in order to sustain the attachment, sued out and levied as it was. Upon consideration of all the evidence adduced there was no sufficient proof to satisfy the court that, in purchasing, Levi acted for Prank, either as a partner or otherwise, hence it resulted that in so far as Prank’s interests were concerned the attachment was properly dissolved.” Prom the above review of Kilpatrick-Koch Dry Goods Co. v. Bremers and Standard Stamping Co. v. Hetzel it clearly appears that this court has not receded from the proposition which heretofore has been laid down in McCord v. Krause. In the case at bar, as has already been pointed out, there is illustrated the danger of departing from that rule and allowing an attempt to sustain a sale to be made by one who, upon his. own showing, has no interest in the attached property. The order of the district court whereby the attachment was dissolved is therefore reversed, and the cause is remanded for further proceedings.

Beversed and remanded.