36 N.W. 481 (Neb. 1888), Lininger v. Herron

Citation:36 N.W. 481, 23 Neb. 197
Opinion Judge:MAXWELL, J.
Party Name:GEORGE W. LININGER ET AL., PLAINTIFF IN ERROR, v. NATHANIEL HERRON, SHERIFF, DEFENDANT IN ERROR
Attorney:Hazlett & Bates and L. W. Colby, for plaintiff in error, Pemberton & Bush and T. D. & J. E. Cobbey, for defendant in error,
Case Date:January 18, 1888
Court:Supreme Court of Nebraska
 
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Page 481

36 N.W. 481 (Neb. 1888)

23 Neb. 197

GEORGE W. LININGER ET AL., PLAINTIFF IN ERROR,

v.

NATHANIEL HERRON, SHERIFF, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 18, 1888

ERROR to the district court for Gage county. Tried below before BROADY, J.

REVERSED AND REMANDED.

Hazlett & Bates and L. W. Colby, for plaintiff in error, cited: Blue Valley Bank v. Bane & Co., 20 Neb. 294. Gillespie v. Brown & Ryan Bros., 16 Id., 462.

Pemberton & Bush and T. D. & J. E. Cobbey, for defendant in error, cited: Wells Res Adjudicata, Sec. 615. Gee v. Williamson, 27 Am. Dec., 628. Sibbald v. U.S. 12 Peters, 488. Hiatt v. Brooks, 17 Neb. 33. Adams Co. v. R. R. Co., 55 Iowa 94. Bonns v. Carter, 20 Neb. 566.

OPINION

Page 482

MAXWELL, J.

This case was before this court in 1885, and is reported in 18 Neb. 450. And it was held that, as against other creditors, the plaintiffs acquired by their chattel mortgage only the right to have a sufficient amount of the goods sold to satisfy their claims, and the balance was a trust fund for the benefit of other creditors, and the plaintiffs must account for such surplus. The plaintiffs, after taking possession of the store and goods of J. B. Lininger, the debtor, began selling the goods at private sale in payment of the debts alleged to be due the plaintiffs, and it was [23 Neb. 198] held in effect that the plaintiffs must account for the actual value of the goods, there being no foreclosure of the mortgage. It is said, pp. 453, 454: "There is testimony in the record tending to show that the value of the goods did not exceed the sum of $ 5,000 when the transfer was made. The invoice, however, shows the value to have been nearly twice that sum. This property was a trust fund for the payment of the debts of J. B. Lininger, and he could not, as against creditors, transfer a greater amount to the plaintiffs than sufficient to pay their claims. As to any excess, they hold the same as trustees for the benefit of creditors of J. B. Lininger.

"While the plaintiffs have a claim upon these goods for the amount of their debts, other creditors also have rights in the premises that must be protected. It is evident that the value of the goods is nearly sufficient to pay all claims of both the plaintiffs, and those in the hands of the defendant."

The cause was then remanded to the district court, and on the second...

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