94 N.W. 837 (Neb. 1903), 12,816, First National Bank of Holdrege, Nebraska v. Johnson

Docket Nº:12,816
Citation:94 N.W. 837, 68 Neb. 641
Opinion Judge:POUND, C.
Party Name:FIRST NATIONAL BANK OF HOLDREGE, NEBRASKA, v. JOHN A. JOHNSON, TRUSTEE IN BANKRUPTCY OF THE ESTATE OF NELS ANDERSON ET AL
Attorney:James I. Rhea, John. L. McPheeley, John M. Stewart and Thomas C. Munger, for plaintiff in error. Hector M. Sinclair and William P. Hall, contra.
Judge Panel:POUND, C. BARNES, C., concurs. OLDHAM, C., did not sit.
Case Date:April 22, 1903
Court:Supreme Court of Nebraska
 
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Page 837

94 N.W. 837 (Neb. 1903)

68 Neb. 641

FIRST NATIONAL BANK OF HOLDREGE, NEBRASKA,

v.

JOHN A. JOHNSON, TRUSTEE IN BANKRUPTCY OF THE ESTATE OF NELS ANDERSON ET AL

No. 12,816

Supreme Court of Nebraska

April 22, 1903

ERROR to the district court for Phelps county: ED L. ADAMS, DISTRICT JUDGE. Reversed.

Reversed and remanded.

James I. Rhea, John. L. McPheeley, John M. Stewart and Thomas C. Munger, for plaintiff in error.

Hector M. Sinclair and William P. Hall, contra.

POUND, C. BARNES, C., concurs. OLDHAM, C., did not sit.

OPINION

[68 Neb. 642] POUND, C.

One Anderson, whose trustee in bankruptcy is plaintiff in this case, executed a chattel mortgage to the cashier of the First National Bank of Holdrege, the defendant herein, on June 23, 1900, whereby he mortgaged "76 head of fat steers now in my feed lots, mostly reds, average weight about 1,500 pounds, branded 6 on side." This mortgage was given to secure a note made in renewal of prior indebtedness and for an additional loan of money. Shortly thereafter Anderson, who was hopelessly insolvent, disappeared. The officers of the bank, becoming aware of his absence, went to look at the cattle, and were unable to find any which entirely answered the description. Thereupon they sued out an attachment, which was levied upon sixty-eight fat steers, the property now in controversy. On November 8, following, Anderson's creditors filed a petition to have him adjudged a bankrupt, and an adjudication to that effect followed on February 16, 1901. The bank, after obtaining possession of the cattle levied upon, proceeded to ship them for sale, and applied the proceeds upon its note. The attachment suit was dismissed on December 20, 1900, presumably by reason of the pendency of proceedings in bankruptcy.

A verdict for the plaintiff was directed in the trial court upon the ground that the defendant had lost whatever lien it might have had upon the cattle under its mortgage by causing an attachment to be levied upon them. There is a long line of cases holding that a mortgagee waives or loses his lien by attaching the mortgaged property. Evans v. Warren, 122 Mass. 303; Whitney v. Farrar, 51 Me. 418; Libby v. Cushman, 29 Me. 429; Haynes v. Sanborn, 45 N.H. 429; Dyckman v. Sevatson, 39 Minn. 132, 39 N.W. 73; Cox v. Harris, 64 Ark. 213, 41 S.W. 426; Dix v. Smith, 9 Okla. 124, 60 P. 303. On the other hand, there is equally [68 Neb. 643] good authority for the contrary view. Byram v. Stout, 127 Ind. 195, 26 N.E. 687; Barchard v. Kohn, 157 Ill. 579, 41 N.E. 902; Howard v. Parks, 1 Tex. Civ. App. 603, 21 S.W. 269. The leading cases on the respective sides of this question are Evans v. Warren, and Byram v. Stout. In Evans v....

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