63 Neb. 234 | Neb. | 1901
The Clason & Fletcher Company, a corporation engaged in the mercantile business in the city of Lincoln, became indebted to various creditors, including the Columbia National Bank of Lincoln, to which institution the Clason & Fletcher Company owed over $10,000 on promissory notes given by it as principal, and executed by the officers and directors as sureties. On November 16, 1893, the corporation was insolvent; and on said day, by its officers, it executed a bill of sale to said bank, covering all its stock of goods and practically all its assets, and delivered immediate possession thereof to the bank. At the time there were numerous creditors of the insolvent corporation. The bill of sale was made to give the bank a preference, and. resulted in the exclusion of other creditors of said Clason & Fletcher Company from sharing in the assets or the proceeds thereof. This suit was brought by the National Wall Paper Company, a creditor of the insolvent corporation, against Clason & Fletcher Company, the bank, and one
It is insisted at the outset that this appeal is of no avail, because no bill of exceptions is contained in the record before us. This objection is untenable. All suits in equity are appealable to the supreme court. Code of Civil Procedure, sec. 675. The transcript for this court should contain only so much of the record as is essential to a correct understanding of the points involved. Moores v. State, 54 Nebr., 486. It must include the decree sought to be reviewed. Bohman v. Chase, 58 Nebr., 712. But it is not essential to jurisdiction that it should contain the bill of exceptions. Schuyler v. Hanna, 28 Nebr., 601; Arnold v. Baker, 6 Nebr., 134; Hines v. Cochran, 35 Nebr., 828.
The record before us raises the right of an insolvent corporation-to prefer a creditor on a debt which the officers and directors were liable as sureties. This court has frequently considered the power of a corporation to prefer creditors, and it is claimed that there is a want of harmony in our decisions upon the subject. An examination of the cases convinces us that the contention is not well founded, although there are expressions in some of the opinions that are somewhat misleading. In our view, the question now before us has been previously passed upon by this court by an unbroken line of decisions to the effect that an insolvent corporation may not give preference to a debt on which an officer or director of the corporation is liable as surety. A brief reference to the cases at this time is pertinent. In Ingwersen v. Edgecombe, 42 Nebr., 740, it is disclosed that the Farmers’ & Drovers’ Bank of Battle Creek, an insolvent corporation, executed
The decisions of this court relied upon as being in conflict with the conclusion we have reached in this case will now be briefly noticed. The first of these is Gorder v. Plattsmouth Canning Co., 36 Nebr., 548. That was a suit to foreclose a mortgage given by the Plattsmouth Canning Company to the plaintiffs, who were its officers and directors, to secure the payment of moneys' borrowed by plaintiffs for the corporation to enable it to carry on its business. Certain stockholders of the corporation intervened and assailed the mortgage. It is disclosed that the debts due the plaintiffs, secured by the mortgage, were contracted with the knowledge and approval of the interveners, and that the mortgage was likewise sanctioned by them. It was not shown that the corporation was insolvent when the indebtedness was contracted, and the mortgage securing the same was executed. Under this state of facts, the mortgage was upheld. Of course, the interveners were by their conduct estopped from question
• The, conclusion, is irresistible, upon a consideration, of
. There is a controversy between the plaintiff and the interveners as. to their respective rights in the premises. The district court not having passed upon that question, the cause is reversed and remanded to that court, with direction to enter a decree against the bank, and determine the rights of plaintiff and interveners.
Reversed and remanded.