109 Neb. 305 | Neb. | 1922
Two injunction suits were brought September 22, 1920, by the plaintiff, John Skala, one against Matilda Michael
The two cases were consolidated by agreement, and tried as one. The court found for the plaintiff and perpetually enjoined the defendants from selling, conveying, removing or interfering with-.said crops. It found specifically . that the Michael attachment was void for the reason that the order for - the same was issued by the county judge at a time when the district judge was in the county;-found that the plaintiff was in.possession of crops to care for and preserve them for the satisfaction of his chattel mortgage when it should be obtained; found that he took possession September 3, and was entitled -to have his mortgage enforced from and after .the 2d day of that month; and found that plaintiff had commenced his specific performance suit before the commencement of any actions by defendants; and found that plaintiff had no adequate remedy at law in the premises.
All of these findings are separately assigned as erroneous; and defendants also complain in their assignments of error -that the finding in favor of the plaintiff and against the defendants was contrary to law and unsupported by the evidence.
That the original action of the plaintiff to secure a mortgage on the crops, etc., was proper is not left in doubt by the holdings of this court. Sporer v. McDermott, 69 Neb. 533; Ryan v. Donley, 69 Neb. 623; Rogers v. Trumble, 86 Neb. 316.
This being decided, the first, and perhaps the controlling, inquiry is: Did the plaintiff by his action in that behalf and otherwise impound the crops in equity so that the attachments and subsequent orders of sale procured by the defendants were of no effect against the plain
The plaintiff was diligent. His petition was filed be- . fore those of the defendants. Further than this, his summons was issued immediately with, the bona, fide intent that it should be served. If the rule, observed in attachment proceedings (that the action is deemed commenced upon the filing of a petition and the issuance of a summons with the bona, fide intent of serving the same) obtains in a suit in equity where the debtor has absconded and the object is to impound his property, then plaintiff’s action was begun, and his equitable right established, before the levy of the attachments. Undoubtedly this rule of attachment arises by a liberal construction of the statutes, to the end that the provisional remedy may be made effective. Johnson v. Larson, 96 Neb. 193; Coffman v. Brandhoeffer, 33 Neb. 279. In the nature of things, it frequently becomes impossible to serve an absconding debtor by a summons issued upon the filing of the petition. If that had to be done to invest the court with jurisdiction over the property sought to be reached, the remedy would prove no remedy at all. Equity has the power, and it would seem that equity ought to hold similarly for the relief of a diligent plaintiff. Under any other rule the dishonest debtor has but to hide and connive in order to defeat the most deserving creditor, if that creditor, as in the instant case, is compelled to resort to equity for his remedy.
As a matter of fact, this was about what happened here. The defendants filed their petitions, and, without the least attempt to serve the debtor, or even to issue a summons for him, secured an order of attachment and a levy of the same. The debtor disclosed his whereabouts to them. And then, in conference with them, he gave them a written stipulation confessing their attachment and authorizing entry of judgment against him, which entry was made at chambers two or three weeks afterward. The plaintiff pleaded fraud and collusion in the
But, independently of the foregoing, we are convinced, and hold, that, in conjunction with the bringing of his suit, -the plaintiff established his equitable right to the crop by filing his lease and taking possession of the property on or about the 4th day of September, This was some days before the attachments were levied. The lease provided that he should have a chattel mortgage upon demand. The defendants had both actual and construe-' tive notice of his rights, for, besides the notice of the record, they found him in possession and talked with him about the precedence of his claim before they filed their petitions.
In the case of Rogers v. Trumble, 86 Neb. 316, a case of the same general nature as this, the court used the following significant language: “The fact that plaintiff had duly demanded such lien was not of itself sufficient, under the evidence, to charge defendant Bell with constructive notice of his equity thereby acquired; and as this court is committed to the doctrine that one who takes a chattel mortgage to secure a debt actually and justly owing to him, whether preexisting or not, without actual or constructive notice of prior equities against the mortgaged property, is a mortgagee in good faith (State Bank v. Kelley Co., 49 Neb. 242), we reluctantly hold that defendant Bell’s mortgage is a first lien upon the chattels in controversy.” It is obvious that, had the defendant Bell been charged with actual and constructive notice, as in the case at bar, the plaintiff would have been awarded a first lien. We have no hesitancy in deciding that the plaintiff’s equitable lien in this case antedates the attachments.
Defendants complain of plaintiff’s affidavit for publication, asserting that the same was not jurisdictional, because not sufficiently disclosing the nature of his action. On the contrary, it appears to the court to be quite with
- The finding of-the district court that the attachment issued upon the suit - of - Matilda Michael was void because order-for the same was obtained-from ;the county court-when-the.-district-court judge-was in the-county seems to have ample support, in Ferson v. Armour & Co., 103 Neb. 809. There is-also abundant - evidence to sustain a finding that the plaintiff did not resign .his -possession and submit to the taking of the sheriff under the attachment orders held by him, as one does who acknowledges-a superior right. He admits that he pointed out articles or stock and personal-property, upon which the sheriff might levy, but maintains that he asserted his right to the crops and continued to. harvest and care for them. It appears-that-, he filed his lease for record on the 4th day of September. The provisions of this- lease indicate that his taking of possession was - justifiable, wholly apart from the fact that under the-circumstances it was also a work of necessity and mercy.
It is urged by the defendants that. injunction did not lie; that' plaintiff might-have resorted-.to an action at law. But he had-no lien, merely an equitable-right arising from his action against Brockman, which, resulted in placing the crops in the custody of the law, .rather- than in vesting, him with a specific lien. His remedy at law would have been doubtful, and would not- in any event have afforded him complete and adequate - relief. Btence, his resort to equity was permissible. He was entitled to injunction by the authorities hereinbefore referred to. Sporer v. McDermott, and Ryan v. Donley, supra.
Other -objections urged by appellants have been ex
Affirmed. .