62 Neb. 497 | Neb. | 1901
William F. Kettenbach, in 1891, took out a policy of insurance upon his life in the Pythian Life Association of Omaha. Afterwards this association ceased to do business, and transferred its policies and business to the Omaha Life Association of Omaha, the latter assuming all liabilities of said Pythian Association. After this transfer and assumption of debt, and in 1893 or 1894, the Omaha Life Association of Omaha deposited with the plaintiff in this case, Eugene Moore, then auditor of public accounts of this state, a certificate oft deposit in the sum of $5,000. After-wards certain sewer bonds were substituted for the certificates of deposit. After this, in 1895, the Omaha Life Association of Omaha ceased to uo business, and transferred all its assets to the Omaha Life Association of Minneapolis, Minnesota, which latter assumed the liabilities of the former association. A controversy having arisen as to the ownership of, and right to, these bonds, Moore commenced this suit for the purpose of having such ownership and right to possession determined, making the two Omaha life associations, and others, parties defendants, and setting forth facts sufficient to give the court jurisdiction to determine the question of ownership. Frank W. Kettenbach, administrator of said William F. Kettenbach, intervened in the action, and in his petition in intervention alleged, among other things, the issuance of said policy to said deceased Kettenbach, the deposit of the bonds and certificate of deposit, the death of the assured; that action had been begun in this state by the administrator upon said policy against the Omaha Life Association of Omaha,
The judgment must be affirmed. First, there was sufficient evidence of record to sustain the findings on which the judgment is based. That being true, the judgment can not be reversed upon the evidence. Further, the petition in intervention stated no cause for equitable relief. There was neither allegation, or attempt at proof, that at the time petition in intervention was filed, said intervener had recovered a judgment against said Omaha Life Association, except the allegation that one, evidently unsatisfactory to him, had been obtained, from which he prosecuted erroc to this court, and had succeeded in having the same reversed. The stipulation of the parties above quoted establishes the fact that at the time of trial no judgment had been obtained. Hence, said Kettenbach is in the position of one who has a claim against another, not reduced to judgment, attempting to enforce a creditor’s bill. ' This court held in Fairbanks v. Welshans, 55 Nebr., 362, that a creditor’s bill can not be maintained until a judgment shall have first been obtained, and numerous decisions of this court and others’upholding and illustrating this doctrine are therein reviewed. For the reason that at the time the petition in intervention was filed the claim of Kettenbach had not been reduced to judgment, his petition was without equity. Hence, the lower court Avas right in dismissing it, and rendering judgment against the intervener. This being true, it is unnecessary to enter at large upon a discussion of. other points argued, none of which, hoAvever, are, in the opinion of this court, Avell taken.
The judgment of the lower court is therefore
Affirmed.