49 Neb. 165 | Neb. | 1896
With the submission of this case on its merits there is also submitted a motion to quash the bill of exceptions. It seems from the record that on the 16th of September, 1893, and within the time fixed for submitting the bill of exceptions, a draft thereof was left at the office of the appellee’s attorney, but not delivered to the attorney himself. It would also seem that the proposed bill of exceptions did not come into the actual possession of the attorney until after the expiration of the time allowed; and it was by him returned, with an objection that it had not been served within time. When the matter was submitted to the trial judge he indorsed on the bill the following: “If service of a bill of exceptions at the usual place of business of the attorney of a party to a suit be sufficient service under section 311 of the Code, then the within bill was presented in time. If such service be not sufficient under said section, then within bill was not presented within eighty days from adjofirnment of court sine die. Question is reserved for decision of supreme court.” At the same time, however, the judge made the following order: “The within is all the evidence offered and given by both parties upon the trial of this cause, and on the application of the defendant herein this bill of exceptions is allowed by me and ordered to be made a part of the record in this case, subject to the decision of the supreme court upon question whether served in time.” One argument advanced in support of the motion to quash is that the order allowing the bill, being conditional, does not amount to a settlement of the bill. We
Section 311 of the Code provides, among other things, that the party excepting shall reduce his exceptions to writing “and submit the same to the adverse party or his attorney of record for examination and amendment if desired.” The question is therefore presented whether leaving the proposed bill at the office of the attorney of record is a “submission” thereof to such attorney within the meaning of the statute. The question is a new one in this court, and our attention has not been directed to any adjudications elsewhere under similar statutes. It has been several times said that the object of the statute in requiring a submission to the adverse party or his attorney is to obtain an accurate bill. (Uhling v. Schellenberg, 12 Neb., 609; Howard v. Lamaster, 13 Neb., 221.) In Fitzgerald v. Brandt, 36 Neb., 683, there were several appellees, whose interests were diverse. The proposed bill of exceptions was left at the office of the attorneys for one appellee, and the others were notified that the bill had been left there for their exainination and would so remain for the time allowed by law. It was held that this was not a submission within the statute. A summons may be
The action was by the Lancaster County Bank against John J. Gillilan, W. G. Houtz, G. M. Lee, C. F. Becker, and Theodore Horn. Gillilan was the assignee of Horn under a voluntary assignment for creditors. The Lancaster County Bank held a note, secured by a chattel mortgage, executed by Horn prior to the assignment. Houtz held a subsequent mortgage on the same property. Lee and Becker were purchasers of a portion of the property from the assignee. The action was to foreclose the bank’s mortgage. The-mortgage of Houtz was executed more than a year after the mortgage to the bank, but was recorded before the bank’s mortgage. The court, in response to the issues joined, found that Houtz’s mortgage had been executed and filed for record by Horn of his own motion, purporting to secure a debt many times greater than the amount actually due, and that it was executed for the purpose of hindering and delaying the plaintiff in the collection of its debt. The bill of exceptions having been quashed, we must accept this finding as conclusive and as justifying the decree of the court annulling Houtz’s mortgage as against the plaintiff. Other findings were that the mortgage to the bank was made August 19, 1890, in good faith and for the purpose of securing a Iona fide debt; that it was not filed for record
In Lininger v. Raymond, 12 Neb., 167, goods had been attached in the hands of an assignee by creditors who justified the attachment on the ground that the assignment was fraudulent. Four days prior to the assignment the assignor had delivered promissory notes to a creditor in payment of a debt much less than the face of the notes. The court held that this did not invalidate the assignment. Discussing the question, it was said: “The assignee is a trustee for the creditors. Under such an as
In Housel v. Cremer, 13 Neb., 298, a mortgagee replevied property from the assignee. The assignee claimed that the mortgage was fraudulent. The court held distinctly that the assignee represented simply the assignor, and not his creditors, and that he could not defeat the mortgage on the ground that it- was fraudulent as to creditors. The question was there squarely involved and it was said by Lake, C. J., commenting on the statement in Lininger v. Raymond, supra, that the assignee is a trustee for the creditors: “That the very reverse of this is the correct rule in the case of a voluntary assignment is shown by an almost unbroken line of decisions in the courts of this country, as well as of England. * * * Where an insolvent makes a fraudulent transfer of property to-defraud his creditors, so as to deprive himself of the right to reclaim it, he cannot by a merely voluntary assignment give the assignee that light.” This case was decided in 1882 and was followed in 1883 by the passage of our present assignment law. Therefore, when the assignment law of 1883 was passed it had once been said by the court that the assignee is a trustee for creditors, and, in effect, that he might assert their rights; but this was an obiter dictum and had been expressly and very emphatically overruled in a case presenting the question.
The true rule being thus established, the legislature within a year passed the present assignment law, and had it been the intention of the legislature to so change the law as to give effect to the rule in Lininger v. Raymond
If doubt remained as to the legislative intent, light is thrown upon it in another direction. Some of the few cases extending to assignees the authority generally to assert the rights of creditors do so upon' the ground that from the time of the assignment the property is in custodia legis, and creditors are no longer in position to assert their rights on their own behalf. Unless, it is argued, and with some force, the assignee shall be permitted to assert for them what they can no longer assert for themselves, by reason of the assignor’s act, their remedy is lost. A somewhat similar position was taken by this court in a very different transaction in Union P. R. Co. v. Douglas County Bank, 42 Neb., 469. But by section 33 of the assignment law,- notwithstanding the assignment or the fact that a creditor has proved his claim, such creditor may pursue any remedy at law or in equity for the collection of his claim against the assignors or any of their estate or property. So that our assignment law does not in anywise impair the rights of creditors to proceed on their
A few cases other than those already cited seem to have some bearing on the question and should be considered. Thus, in Smith v. Jones, 18 Neb., 481, it was said that where a firm is insolvent its property is a trust fund for the benefit of its creditors; and further, that while in England assignments do not create a trust, in this country it is generally held that a voluntary assignment for the benefit of creditors, if valid, is not a mere agency of the debtor, but creates trust relations; and that the assignee can maintain an action to protect the trust estate. Two observations are to be made in regal’d to this case. In the first place, it involved a construction, not of the present assignment law, but of the assignment law of 1877, the assignment in question having been made under the former act. It was decided after the passage of the present act, and therefore the legislature could not have been influenced, in passing the present act, by anything in that case. In the second place, the question involved was nothing like that here presented. The title to real estate had been taken in the name of one of two partners, but it had been purchased by partnership funds for partnership purposes. It had been seized on attachment by an individual creditor of the partner in whose name the legal title stood, and the action was to enjoin the confirmation of a sale made, to have the sale set aside and the property applied to the payment of firm debts; in other words, it was, in effect, an action to declare a trust in favor of the assignors, and thereby to enforce a right which they themselves would have had in the absence of the assignment. The decision did not extend to the assignee any power peculiar to creditors and not possessed by the assignors themselves. In Commercial Nat. Bank v. Nebraska State Bank, 33 Neb., 292, the doctrine was again asserted that a voluntary assignment creates a trust for the benefit of creditors, and the language in Lininger v. Raymond, supra, to that effect was quoted with approval,
In Brown v. Farmers & Merchants Banking Co., 36 Neb., 434, it was said by Post, J., commenting on Housel v. Cremer, that “The proposition that the assignee represents the assignor only would not be strictly accurate as applied to the assignment law of 1883.” But this was by no means a declaration that the proposition is not true of the act of 1883 except where that act declares to the contrary. The right was there asserted under section 42, already referred to, and in cases within that section, as said in Brown v. Farmers & Merchants Banking Co., supra, the assignees’ rights are similar to those of a judgment creditor. They are similar because those sections make them so; and that was the effect of the decision.
In Salladin v. Mitchell, 42 Neb., 859, it was again said by Post, J., that the conclusion of the court in favor of a right of set-off by a depositor in an insolvent bank
In Becker v. Anderson, 11 Neb., 493, it was held that where a chattel mortgage was void as against creditors, the mortgaged property became assets in the hands of an executor of the mortgagor. This case was based solely upon the authority of Kilbourne v. Keller, 29 O. St., 264. Ohio is one of the states which have held that an assignee represents creditors; but in Kilbourne v. Keller there was a very cogent dissenting opinion. In Becker v. Anderson the mortgagee was himself one of the executors, and the suit was by creditors, and it was not the executors who were attacking the mortgage. Therefore, it is not very clear how the question was considered involved in the case. That the case was not in all respects carefully considered is evident from the fact that in Marsh v. Burley, 13 Neb., 261, an important point in Becker v. Anderson was expressly overruled, the same judge writing the opinion in both cases, and saying in Marsh v. Burley that the statement in Becker v. Anderson had been made inadvertently. Becker v. Anderson was also decided prior to Housel v. Cremer, and if the conclusion in Becker v. Anderson is in conflict with that which we have reached, it is also in conflict with Housel v. Oremer and was overruled by that case. But whether or not Becker v. Anderson is logically opposed to our conclusion we need not determine, because the question now before us is one of statutory construction. The object is to ascertain the intent of the legislature, and we base the construction given the statute on the principle that the legislature in enacting it did so in view of the construction which had then been placed by this court and others upon similar statutes.
There are other cases in which language appears which, taken by itself, might seem to relate to the question; but the facts of the cases render the subjects treated so remote from this question that it would be
Affirmed.