299 N.W. 185 | Neb. | 1941
This is an appeal from a decree of the district court for Lincoln county, dissolving the plaintiff’s temporary restraining order, denying injunction and set-off, and dismissing plaintiff’s action.
This action was instituted in the district court for Lincoln county by Julia Burklund Sherwood, formerly Julia E. Burklund, appellant, against the sheriff of Lincoln county and A. S. Coates and Hubert J. Price, appellees, to perpetually enjoin the enforcement of a judgment of $553.75, interest and costs, obtained by the receiver of the American State Bank of Sutherland, Nebraska, against Julia E. Burklund, then single, the appellant, on January 9, 1935, in the county court of Lincoln county, Nebraska, and on March 28,
Temporary restraining order was entered and upon hearing on September 13, 1940, default was entered against the defendant Hubert J. Price and trial had as to the defendant A. S. Coates, the court finding ¿hat he was the real and true owner of said judgment, and thereupon vacated and set aside the temporary restraining order, denied perpetual injunction, and dismissed plaintiff’s action at plaintiff’s cost. From this judgment plaintiff appeals, contending that the judgment is contrary to the facts and law.
Upon this appeal, so far as is necessary, this court retries the issues of fact and law presented by the record de novo, and reaches an independent conclusion without reference to the conclusion reached in the district court. Comp. St. 1929, sec. 20-1925.
The record discloses that Hubert J. Price was the sole managing officer of the American State Bank located at Sutherland, Nebraska, until it was taken over by the department of banking and E. H. Luikart appointed receiver. The receiver obtained a judgment against the appellant on January 9, 1935, for obligations owing the bank, in the sum of $553.75 with interest and costs, which judgment remained part of the assets of the receivership until offered for public sale with other remaining assets of said bank on March 12,
No attempt was made by A. S. Coates to collect the Burklund judgment, although he knew appellant and her father for years and lived in the same town of Sutherland, and during this time he was financially destitute, was sickly and needed medical attention.
On October 18, 1937, Charles W. Burklund on notes dated September 19,1931, obtained a judgment against the defendant Hubert J. Price for $4,005 with interest and costs, which judgment was assigned to plaintiff on February 11, 1938, and remains wholly unsatisfied. The evidence further shows that on March 7, 1933, James Peterson obtained a judgment in the county court of Lincoln county against Hubert J. Price for the amount of $578.40; that on September 15,1937, the department of banking obtained a judgment in the district court for Lincoln county against the defendant Hubert J. Price in the sum of $6,766.17.
While the lower court found from the facts that A. S. Coates was the true owner of said judgment, from a careful analysis of the entire testimony and all of the circumstances in connection with the dealings of the parties it would appear clear that Hubert J. Price was actually the owner of this judgment, and that Mr. Coates merely had the assignment thereof in his name for convenience and without any beneficial ownership therein, and it further appears without question from the default entered against Mr. Price and the evidence offered that at all times he was insolvent and that appellant would be without any means at law to satisfy the judgment assigned to her against the said Hubert J. Price. As has been stated by our court in the case of Cochran v. Cochran, 62 Neb. 450, 87 N. W. 152: “If the judgment debtor owns real estate, the legal title to which is in another, but without any beneficiary interest, and the judgment debtor owns all the beneficiary interest in the land, a court of equity may, in proper proceedings, direct the defendant’s interest in the land to be sold whether or not
Our court has held: “Insolvency of a party, against whom set-off is sought, may be sufficient ground for a court of equity to allow a set-off which is not provided for by statute.” Clark Implement Co. v. Wallace, 103 Neb. 26, 170 N. W. 171. See Richardson v. Doty, 44 Neb. 73, 62 N. W. 254. And as stated in Wells v. Cochran, 88 Neb. 367, 129 N. W. 533: “The insolvency of a party against whom a set-off was claimed is recognized as sufficient to justify the intervention of a court of equity.”
Where therefore, as here, the record shows that the defendant A. S. Coates is an elderly gentleman without means other than his home, and where the defendant Hubert J. Price is shown to be insolvent and a judgment against him could not be collected, and where he owns all of the beneficiary interest in a judgment against the appellant, but held in the name of the defendant A. S. Coates, who has no interest therein, but is however attempting to enforce the judgment in his name and against the property of the appellant who has an unsatisfied judgment against the defendant Hubert J. Price, and it appears that the enforcement of said judgment would cause irreparable damage to- the appellant for which she has no adequate remedy at law, a court of equity should relieve the party from this inequitable situation, and the enforcement of the judgment in the name of A. S. Coates should be permanently enjoined, the judgment be declared to be the property -of the defendant Hubert J Price, and because of his insolvency a set-off of the full amount of said judgment and costs be allowed and credited
It further appears that subsequent to the commencement of this action A. S. Coates made an assignment of this judgment to his daughter, Nevita Schatz, and that a lien for attorney’s fees was filed in favor of Harold E. Coates and W. S. Padley; however, these all being filed subsequent in time to the commencement of this action create no lien or right in and to the judgment that in any way affects this judgment as to the appellant’s right of set-off as herein determined.
Wherefore the findings and judgment of the lower court are reversed and the cause is remanded with directions.
Reversed.