44 Neb. 105 | Neb. | 1895
Plaintiff brought suit in the district court of Douglas county against the defendants named, as individuals, for the recovery of judgment in the sum of $348.13, alleged to have been due, and the sum of $1,067.71 about to become due when suit was brought. An attachment was, at the commencement of the suit, procured to be issued against the property of the defendants, but was levied on a stock of groceries of which the defendant Frank J. Hetzel claimed to be the owner. From an order dissolving said attachment plaintiff, has prosecuted .error proceedings to this court. In the petition were averments as follows:
“2. The defendants are a partnership doing business in the city of Omaha, Nebraska, in the wholesale and retail grocery business, but are not doing busines as such partnership under any firm name.
“3. Thedefendants, although partners, were and aredoing business- as such wholesale and retail grocers at three points in said city and state; one store under the name of the ‘ Mammoth/ on the west side of Sixteenth street, between Dodge*107 and Douglas streets; one store under the name of the ‘Bee Grocery Company/ on Sixteenth street, between Cass and California streets; and one store near the corner of Twenty-fourth and Cuming streets under the name of L. G. Iietzel.
“4. That between June 14th and August 11th, 1892, plaintiff sold and delivered to the said defendants, at the special instance and request of the said L. G. Hetzel, goods, wares, and merchandise of the value of $1,415.84, * * which said wares and merchandise were purchased for the said defendants jointly, and exposed for sale in their three several places of business.”
Following the above allegations there were averments in the petition that, previous to a date in 1892 not given, the defendants had held themselves out to the public as partners, but had then pretended to dissolve said partnership relation, and, from thenceforward, each defendant had pretended to engage in business for himself and on his own sole account, but, as plaintiff charges upon belief, there existed a conspiracy between the defendants to defraud wholesale houses by buying largely on credit and selling and concealing as many of their goods as it was possible, leaving said wholesale houses unpaid; that to facilitate said fraudulent plan, and as part thereof, the pretense of dissolution had been resorted to, after which Levi G. Hetzel in his own name purchased goods from as many wholesale houses as would give him credit, and from these goods furnished the store which it was pretended was being run by Frank J. Hetzel as his own; that said goods so purchased by Levi G. Hetzel were for the benefit of both of said defendants and were purchased in pursuance of said plan to defraud, and that Frank J. Hetzel received the portion of said goods so furnished him in pursuance of said plan to defraud, and to enable said Levi G. Hetzel to defraud, and for the purpose of defrauding the plaintiff. In connection with the above averments there was given a statement of the dates at which would fall due the amounts for which judgment
The motion to dissolve the attachment was filed on behalf of Frank J. Hetzel alone. It was heard and determined upon consideration of a large amount of evidence presented by affidavits, and of still more abundant testimony given orally. With the result attained we cannot interfere, for the findings of a trial court as to the existence of facts established upon the consideration of conflicting evidence are conclusive when the proofs are such that different minds therefrom might fairly draw different conclusions.
It is strenuously urged by the plaintiff in error that since in the petition there were averments of the existence of a partnership between the defendants, that question was one which could.properly arise only upon the issue made by a denial of this averment in the answer, and that, therefore, the district court erred in considering whether or not the alleged partnership relation actually existed. The goods attached were claimed by Frank J. Hetzel. By the attachment of these goods as the property of both the defendants there was a recognition by plaintiff that Frank J. Hetzel had an interest in them as an owner. If, in fact, Frank J. Hetzel was the sole owner of the attached property he was entitled to have the attachment thereon dissolved unless, in some way, there was shown a privity between the defendants, for the plaintiff itself in its petition had alleged that the sale of the goods was made to Levi Gr. Hetzel. In this connection there were extended averments of a partnership relation under and by virtue of which the
- Probably for’ the purpose of prosecuting with distinctness some questions deemed important, the plaintiff, after the motion to dissolve the attachment had been sustained, filed certain affidavits with a request for specific findings not theretofore made. On motion these affidavits were
Affirmed.