Wells v. Lamb

| Neb. | Jul 15, 1885

Maxwell, J.

In September, 1883, Postlewait & Co. were doing business at Odell, Diller, and Reynolds, in this state, the firm at that time consisting of J. W. Bowen and John Postlewait. Being in failing circumstances, on the 11th day of September, 1883, they made an assignment under the statute to the sheriff of Gage county. Comp. Stat., Ch. 6. This assignment was duly recorded by the sheriff of said county on the 12th of that month, and possession taken by him of the property so assigned. Afterwards the defendant in error was duly chosen assignee by the creditors of said firm, and accepted the trust and qualified as required by law.

On the 14th of September, 1883, the property in question was taken from the possession of the sheriff of said county by Wells, who was the coroner thereof, and Fletcher, who was a constable, at the suits of a number of persons who were creditors of Postlewait & Co. The assignee, on or about the 9th of October, 1883, demanded the goods in question from the plaintiffs in error, and upon their refusal to deliver them up brought an action of replevin and obtained possession of the proj>erty. On the trial of the cause the court found in favor of the assignee, and rendered judgment accordingly.

It appears from the evidence that the assignment was prepared about one o’clock on Monday morning of the 11th day of September, 1882, and was held by one of the partners, ready to be delivered to the sheriff. That about 5 o’clock in the afternoon of that day one Barnett, a deputy sheriff of that county, went to Odell for the purpose, apparently, of levying certain writs of attachment on the property in question; that soon after his arrival there, and before he had made his business known, one of the partners delivered the assignment to him and requested him to take possession of the property under the assignment, which he did. The assignment was sent the next'day to Herron, the sheriff, who immediately had the same recorded. Other wrrits of attachment seem to have been issued on the 14th of that month and delivered to the plaintiffs in error, who levied upon the goods under the whits. The question involved is the right to the possession of the property.

Sec. 212 of the code provides that “An order of attachment binds the property attached from the time of service.”

Sec. 205 provides that the “ order of attachment shall be executed by the sheriff without delay. He shall go to the place where the defendant’s property may be found, and there, in the presence of two residents of the county, declare that by virtue of said order he attaches said property at the suit of such plaintiff,” etc. It will thus be seen that the sheriff had acquired no lien by the levy of the attachment at the time of the assignment, and that the attachment was not levied until three days after the assignment was made, and two after it was filed and recorded. The assignment was made under the act of 1883, and no reason has been given why it should be declared invalid. We must bold, therefore, that tbe right of the assignee is superior to the attachments, and tbe judgment of the court below must be affirmed.

Judgment appirmed.

The other judges concur.