McConniff v. Van Dusen

57 Neb. 49 | Neb. | 1898

Sullivan, J;

Elizabeth J. McConniff brought this action in the district court of Lancaster county to foreclose a chattel mortgage made and delivered to her by Alice E. Yan Dusen and R. J. Brydon. At the instance of the plaintiff, a receiver was appointed and the mortgaged property, which consisted of a stock of millinery goods, was taken from the possession of the mortgagors and sold at public auction under the direction of the court. Mrs. McConniff became the purchaser. Before the commencement of the trial the appellants Pratt, Simmons & Krausnick became a party to the action by intervention. They allege in their petition, with much elaboration, that they are the owners of a portion of the property in controversy; that the mortgagors purchased and obtained possession of the same by false representations touching their financial responsibility; that the sale was seasonably rescinded; that the plaintiff is not a Iona -fide purchaser, nor possessed, by virtue of her mortgage or otherwise, of any valid and enforceable claim, lien, right, or title. In dne time issues were joined and a trial had, which resulted in a decree dismissing the interveners’ petition. They appeal and bring before us for review the pleadings, motions, interlocutory orders, and final judgment. A bill of exceptions attached to the record was, for sufficient reason, quashed at a former term. The portion of the decree disposing of the claim of Pratt, Simmons & Krausnick is as follows: “This cause having been heretofore submitted to the court upon the evidence adduced, now comes on for final determination, and after due consideration, and the court being fully advised in the premises, finds that the claim of the interveners, Pratt, Simmons & Krausnick, set forth in their answer and cross-petition herein, has not been reduced to judgment, and that there is no equity in said interveners’ answer and cross-petition. The court, therefore, finds the issues joined in favor of the plaintiff and that the action of the said defendants Pratt, Simmons & Krausnick herein shall be, and the same hereby is, dismissed at their costs, taxed at $31.68, and for which execution is hereby awarded; to which the said defendants Pratt, Simmons & Krausnick duly excepted.”

The writer was at first inclined to think that the court intended to base its finding of the issues on the evidence adduced at the trial; but, as the result of a closer examination and more careful analysis of the language contained in the journal entry, we are all agreed that the interveners were cast in their action because the trial court found their claim had not been reduced to judgment and that their petition was deficient in equity. These reasons are insufficient. They do not justify the conclusion or judgment. The property in question, or its proceeds, was in the custody of the court. The interveners claimed a portion of it adversely to the original parties to the action. They averred facts in their petition showing the superiority of their title over the claims of other litigants. They Avere entitled to intervene and to a judgment in their favor if they succeeded in establishing the material allegations of their pleading. (Code of Civil Procedure, sec, 50a; Holland v. Commercial Bank, 22 Neb. 585; Welborn v. Eskey, 25 Neb. 195.) We know of no reason Avhy it Avas necessary that their claim should be in judgment in order to give them a standing in court. They were asserting title to the property, not prosecuting a creditor’s bill. The judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed and remanded.