19 Neb. 44 | Neb. | 1886
These cases being argued and submitted together and presenting the same questions will be disposed of in the same way. The questions presented by the brief of plaintiffs in error will be noticed in the order in which they there occur therein.
Certain attachments were issued from the district court of Richardson county in actions brought by plaintiffs in error, which were, upon motion of defendants in error, discharged by the order of the judge of the first judicial district. This ruling of the district judge is assigned as error, and is brought to this court for review. The affidavits upon which the attachments were issued allege and charge, in substance, that defendants in error had.assigned and disposed of their property with the intent to defraud their creditors, and that they were about to convert the remainder of their property into money with the intent to defraud their creditors. Defendants in error moved to discharge these orders upon the ground that the facts stated in the affidavits were insufficient in law to authorize the issuance of the orders, and that the facts stated in the affidavit were untrue. The ruling of the court was evidently based upon the latter ground. The facts, as shown by the proofs submitted to the lower court, were, that defendants in error were merchants in Falls City, carrying a stock of goods of the value of from $14,000 to $18,000, and that they were indebted to various persons and firms to the amount of about $11,000. That certain of the creditors who resided in the city of Chicago, and representing about $9,000 of the indebtedness, were pressing defendants in error for payment or security, when they executed and delivered to them a chattel mortgage on their stock of goods, and under which the mortgagees took possession. The attachments followed.
The fraudulent intent which it is claimed existed at the
Upon the other hand this intent is denied, and the positive denial under oath of defendants in error, as well as of the agent of the creditors who procured the mortgage, the fact that the debts secured were bona fide debts, that the property was put into the hands of the mortgagees, who took possession and control of them, placing the agent in charge as cashier, and hiring one of defendants in error as clerk at the agreed wages of $15 per week, are relied upon to repel any presumption of fraudulent intent which might be relied upon by plaintiffs in error. These questions were submitted to the district judge upon the hearing, and in view of the fact that the burden of proof rested upon plaintiffs in error, the intent having been denied, we cannot say the decision was wrong.
It is claimed that when defendants in error executed the chattel mortgage to the creditors named therein, it was done in contemplation of their insolvency, and with the full intention by them to make a final disposition of all their property, quit business, and dissolve the partnership, and that-therefore the mortgage was equivalent to an assignment by which certain creditors were preferred, and
Plaintiffs in error also contend that the value of the mortgaged property being greater than the debt secured, is an indication of fraud, or at least works a fraud upon
In the ruling of the court upon this part of the case we see no error.
It is next contended that defendants in error have no*standing in court which will permit them to question the attachments. That according to their own theory they were not in possession of the goods at the time of the levy and are not entitled to t he possession of them. This might, perhaps, be sufficiently answered by saying that since plaintiffs in error have levied upon the property as the' property of defendants in error, and insist that it does belong to them, they might not be heard now to say that plaintiffs in error have no such interest in it as would permit them to defend against the attachment. But, however that may be, it is plain that under the provisions of section 235, et seq., of the civil code, the defendant in an attachment proceeding may, at any time before judgment, move to discharge an attachment which has been issued against him and is levied upon property in which he claims an interest. While in this case defendants in error were not entitled to the possession of the property levied on, yet they clearly had an interest in it, subject to the mortgage, which they had the right to protect. The cases cited by plaintiffs in error upon this point are not in conflict with this view.
JUDGMENT ACCORDINGLY.