Barkley v. Schaaf

• Decision Date: 21 April 1923
• Docket Number: 22354
• Citation: 193 N.W. 267,110 Neb. 223
• Parties: WILLIAM E. BARKLEY, RECEIVER, APPELLEE, v. FRANK E. SCHAAF ET AL., APPELLANTS
• Court: Nebraska Supreme Court

193 N.W. 267

110 Neb. 223

WILLIAM E. BARKLEY, RECEIVER, APPELLEE, v. FRANK E. SCHAAF ET AL., APPELLANTS

No. 22354

Supreme Court of Nebraska

April 21, 1923

APPEAL from the district court for Lancaster county: WILLIAM M MORNING, JUDGE. Appeal dismissed.

APPEAL DISMISSED.

Sterling F. Mutz, for appellants.

Good & Good, Boehmer & Boehmer and F. C. Foster, contra.

Heard before MORRISSEY, C. J., ROSE, ALDRICH and GOOD JJ., BEGLEY District Judge.

OPINION

GOOD J.

Plaintiff and appellee, as receiver of the Nebraska Hotel Company and of the Nebraska Building & Investment Company, brought this action against Frank E. Schaaf and his wife, Gertrude A., the National Bank of Commerce and others, claiming, in effect that a fund of $ 6,000 in the said National Bank of Commerce, and which was represented by a certificate of deposit and a cashier's check, issued by said bank and payable to Gertrude A. Schaaf, was the property of the Nebraska Hotel Company, and claiming that the defendants Schaaf and wife were seeking to wrongfully withdraw said fund from the bank and appropriate it to their own use. The defendants Schaaf and wife answered with a general denial, except that it was admitted that they were husband and wife, and later they filed an amended answer, in which they set up a judgment in another action which they claimed was an adjudication of the issues in this case. The plaintiff filed a reply which partakes of the nature of a supplemental petition, and in which it was admitted that a judgment had been obtained in favor of the Nebraska Hotel Company in another action against Schaaf, and asking that the money, represented by the certificate of deposit and cashier's check, be applied in part payment of that judgment. The record does not disclose the contents of the answers filed by the defendant National Bank of Commerce and the other defendants, but the decree of the district court shows that answers were filed by the said bank and other defendants.

Upon a trial of the case the court found that neither Schaaf nor his wife had any interest in the fund, and that the $ 6,000, or the check and certificate of deposit representing the same was the property of the Nebraska Hotel Company, and ordered the receiver to indorse the check and certificate of deposit, turn them over to the defendant National Bank of Commerce, and ordered the bank to pay the amount represented thereby into court, and directed...