Aultman, Miller and Company v. Bishop

• Decision Date: 02 February 1898
• Docket Number: 7730
• Parties: AULTMAN, MILLER AND COMPANY, APPELLANT, v. ALFRED L. BISHOP ET AL., APPELLEES
• Court: Nebraska Supreme Court

74 N.W. 55

53 Neb. 545

AULTMAN, MILLER AND COMPANY, APPELLANT, v. ALFRED L. BISHOP ET AL., APPELLEES

No. 7730

Supreme Court of Nebraska

February 2, 1898

APPEAL from the district court of Hamilton county. Heard below before WHEELER, J. Affirmed.

AFFIRMED.

Hainer & Smith, for appellant.

Howard M. Kellogg, contra.

OPINION

HARRISON, C. J.

The plaintiff in its petition filed in this action in the district court of Hamilton county pleaded that Alfred L Bishop, of defendants, was for two years prior to November 24, 1890, engaged in business in the city of Aurora, in this state, selling at retail agricultural implements, musical instruments, sewing machines, buggies and wagons, etc., and that on the said date he was indebted to plaintiff in sums aggregating about $ 1,600 for purchases of it of certain portions of the articles which he had in stock for sale; that Deere, Wells & Co., of Council Bluffs, Iowa, did business in this state, and under the same firm name and style and on the 17th of December, 1890, the defendant Bishop executed and delivered to Deere, Wells & Co. two chattel mortgages, each according to its words and figures, being for the purpose of securing the payment to the designated mortgagee the total sum of $ 13,115.22 in stated sums and at fixed dates. In one of the mortgages as the property thereby subjected to a lien there was described specifically the articles which the mortgagor then had, as a dealer, for sale and in the other certain enumerated stock of the horse kind. It was also alleged that on December 26, 1890, the plaintiff instituted an action in the district court of Hamilton county against said Bishop to recover an alleged balance then its due from him in the sum of $ 1,673.44, and at the same time filed in said action its affidavit in attachment stating therein, among other things, that the defendant had made a fraudulent disposition of his property; that plaintiff procured a writ of attachment to issue and to be levied on certain property, which was that included and described in the mortgages to Deere, Wells & Co.; and that on March 27, 1893, during the pendency of a term of the said district court, on a full hearing of the cause on its merits, Bishop was adjudged indebted to plaintiff in the sum of $ 1,031.90 and the attached property was ordered to be sold and the proceeds applied in satisfaction of the judgment; that said judgment is still in full force and effect; that no appeal has been taken therefrom and no part has been collected or paid. It was further averred that during the year 1891. Deere, Wells & Co. commenced an action against plaintiff in a district court of Iowa to recover of and from the plaintiff the value of the property which had been taken for plaintiff under the writ of attachment in this state in its action against Bishop; that Deere, Wells & Co. claimed ownership of the property under and by virtue of the two chattel mortgages executed and delivered to it by Bishop; that issues were joined in the action in the Iowa court and a trial had which resulted in a judgment in favor of Deere, Wells & Co. in the sum of $ 3,500, which the plaintiff of the present action afterwards paid in full, together with the costs, $ 155.46; and that Deere, Wells & Co. had received the amount of the judgment from the clerk of the court, to whom it was paid by the plaintiff herein; that Alfred L. Bishop attended at the trial of the cause in Iowa and was a witness therein on behalf of Deere, Wells & Co., "and aided, abetted, and assisted Deere, Wells & Co. in obtaining the said judgment." The prayer of the petition was as follows: "Wherefore plaintiff prays that it may be ordered, adjudged, and decreed by this court that plaintiff by operation of law succeeded to all the rights of the defendant Deere, Wells & Co. under and by virtue of the terms of said chattel mortgages as to all of such property that said Deere, Wells & Co. procured the value of in the action of conversion tried in said district court of Pottawattamie county, and that plaintiff be subrogated to each and all of the rights of said Deere, Wells & Co. and be permitted and allowed to foreclose said chattel mortgages so far as relates to the property which was taken into consideration upon the trial of said action of conversion; that said defendants, and each of them, may be barred and foreclosed of all equity of redemption and other interest in or to said mortgaged property; that an account may be taken of the property now in the hands of the sheriff and being held under and by virtue of the order of attachment issued in the cause pending in this court, and that said property may be sold according to law and out of the proceeds thereof the plaintiff be allowed a credit upon the amount he paid to said Deere, Wells & Co. upon the judgment aforesaid, and that defendant Alfred L. Bishop be adjudged to pay any deficiency which may remain after applying the proceeds of said sale toward the payment of the amount of said judgment, together with interest and costs; that it further be ordered that the sheriff of this county sell said property under the order of this court in this cause; that the property be released from the order made in the case wherein the plaintiff was plaintiff and the defendant Alfred L. Bishop was defendant and heretofore tried in this court, and that an order releasing said property from the attachment proceedings as heretofore alleged be made without prejudice to any right of plaintiff to enforce said judgment for the full amount thereof and to the same extent as if no order had been made for the sale of the attached property, and for such other, further, or different relief as may be just and equitable in the premises."

To this petition for Alfred L. Bishop there was the following answer "The defendant Alfred L. Bishop, for answer to the petition of the plaintiff herein, admits that he was in business in Aurora, Nebraska, prior to November 24, 1890, as alleged; admits the bringing of a suit against him by plaintiff, the issuance and service of an attachment therein, the seizure of goods thereon, and the rendition of final judgment in this court in said action as alleged. He admits that Deere, Wells & Co. commenced an action against this plaintiff in Pottawattamie county, Iowa, and that he testified as a witness in said action, and that the judgment rendered therein has been paid by the plaintiff. He alleges that in the action brought against him in this court by the plaintiff, the pleadings, record, and proceedings in which are made a part of the petition herein, he filed a motion and affidavit for the discharge of the attachment theretofore issued; that a full hearing was given thereon, upon both affidavits and oral testimony; that to sustain the attachment and the allegation in their affidavit, as a ground therefor, that this defendant had disposed of his property with intent to defraud his creditors, the plaintiff claimed, and introduced evidence to prove, that the mortgages now set out in the plaintiff's petition were fraudulent both in fact and law; that said claim was controverted by this defendant; that a full hearing was had upon said question, the same was argued to the court by counsel; that this court expressly found and decided in said proceedings that said mortgages, set up in plaintiff's petition, were in law, though not in fact, fraudulent and void as against the other creditors of this defendant; that the lien of the plaintiff's attachment was superior to the lien of said mortgages, and upon that ground the court sustained said attachment and, on final judgment being given in said case, ordered the attached property sold for the payment of the same, from which judgment and order no appeal or proceedings in error were prosecuted by either party. Wherefore this defendant submits to the court that both plaintiff and this defendant, parties to said action, are bound and concluded by said finding and decision of this court therein, that the plaintiff is barred and estopped from claiming that the mortgages set out in the petition constitute any lien upon, or give any claim whatever to, the goods conveyed by the attachment and described in the petition herein; that, as between the...