31 N.W. 511 (Neb. 1887), Price v. McComas

Citation:31 N.W. 511, 21 Neb. 195
Opinion Judge:MAXWELL, CH. J.
Party Name:THOMAS PRICE ET AL., PLAINTIFF IN ERROR, v. RUFUS F. MCCOMAS, DEFENDANT IN ERROR
Attorney:N. C. Abbott and O. P. Mason, for plaintiff in error. Edwin F. Warren, for defendant in error.
Case Date:February 09, 1887
Court:Supreme Court of Nebraska
 
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Page 511

31 N.W. 511 (Neb. 1887)

21 Neb. 195

THOMAS PRICE ET AL., PLAINTIFF IN ERROR,

v.

RUFUS F. MCCOMAS, DEFENDANT IN ERROR

Supreme Court of Nebraska

February 9, 1887

ERROR to the district court for Lancaster county. Tried below before HAYWARD, J.

REVERSED AND REMANDED.

N. C. Abbott and O. P. Mason, for plaintiff in error.

Edwin F. Warren, for defendant in error.

OPINION

[21 Neb. 196]MAXWELL, CH. J.

In July, 1885, the defendant in error filed a petition in the district court of Lancaster county, claiming a special ownership in nine head of two and three-year-old steers by virtue of a chattel mortgage made by one Robert Arundale, dated Jan. 15, 1885, and filed for record Jan. 13, 1885, in which the plaintiffs in error are charged with the conversion of said steers, and judgment is prayed for their value.

The defendants below

Page 512

(plaintiffs in error), in their answer, claim said property by virtue of a chattel mortgage executed by said Arundale to Thomas Price, January 9, 1885, and filed for record January 12, 1885. They also claim by virtue of an attachment levied on said cattle April 9, 1885. On the trial of the cause it was admitted in open court that on and prior to the 9th day of January, 1885, one Robert Arundale was the owner of the cattle in controversy, and that on said day he executed and delivered to plaintiff Price a chattel mortgage on certain property in said mortgage described as "ten head of two-year-old-past steers, valued at thirty-five dollars per head.

* * * The above described chattels are now in my possession, are owned by me, and free from all incumbrances in all respects." Said mortgage was given to secure the payment of a certain promissory note for the sum of six hundred ninety-one and fifteen-hundredths dollars, due and payable. Said mortgage was on the 10th day of January, 1885, duly filed for record. Said note and mortgage was, before due, transferred to one R. C. Outcalt, who was the owner thereof at the time of the alleged conversion. That on or about the 9th day of April, 1885, said Outcalt [21 Neb. 197] put said mortgage into the hands of plaintiff Melick for collection and foreclosure, and under said mortgage said Melick took possession of the property described in petition for the purpose of foreclosing the same.

That on or about the 9th day of April, 1885, plaintiff Price...

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