Bartlett v. Cheesebrough

• Decision Date: 30 June 1891
• Citation: 49 N.W. 360,32 Neb. 339
• Parties: D. S. BARTLETT ET AL. v. MOSES CHEESEBROUGH
• Court: Nebraska Supreme Court

49 N.W. 360

32 Neb. 339

D. S. BARTLETT ET AL. v. MOSES CHEESEBROUGH

Supreme Court of Nebraska

June 30, 1891

ERROR to the district court for Valley county. Tried below before HARRISON, J.

AFFIRMED.

Chas B. Keller, for plaintiff in error, cited: Fisher v Herron, 22 Neb. 183; Aultman v. Obermeyer, 6 Neb. 265; Wake v. Griffin, 9 Neb. 47; Monteith v. Bax, 4 Neb. 170; Thompson v. Lorenig, 13 Neb. 386; First Natl. Bank v. Bartlett, 8 Neb. 329; Hoagland v. Wilson, 15 Neb. 322; Collins v Mack, 31 Ark. 685, 694; Lucas v. Flinn 35 Iowa 9-14; Payne v. State, 60 Ala. 80-86; Holbrook v. Holbrook, 30 Vt. 433; Ray v. Bell, 24 Ill. 444-454; Nute v. Nute, 41 N. H., 60; Bressler v. People, 117 Ill. 422; State v. McDonald, 65 Me. 466; People v. Devine, 44 Cal. 452-459; Stephens v. People, 19 N.Y. 549.

A. M. Robbins, contra.

OPINION

NORVAL, J.

This is an action of replevin brought by the defendant in error against the sheriff and deputy sheriff of Valley county, to recover the possession of a stock of general merchandise.

On the trial, the jury returned a verdict in favor of the plaintiff, and judgment was entered thereon. The defendants brought the case to this court on error, and at the January term, 1888, the judgment was reversed and the cause remanded. (23 Neb. 767.) The second trial in the district court resulted in a verdict and judgment for the plaintiff, and the cause is again brought here by the defendants.

Elton Cheesebrough, in 1884, was engaged in the mercantile business at Ord, in Valley county. On the 26th day of May, 1884, he made a bill of sale of the entire stock of goods to his father, the defendant in error, the consideration expressed in the bill of sale being $ 2,521.93. Moses Cheesebrough took possession of the goods, and, on the 2d day of June, 1884, the plaintiffs in error levied certain writs of attachments upon the goods while in the possession of the defendant in error, as the property of the said Elton Cheesebrough. Thereupon this suit was brought. The sheriff justified under his writs of attachments, and claims that the bill of sale was made by the son to the father for the purpose of defrauding the creditors of Elton Cheesebrough.

The first point discussed in the brief of plaintiffs in error is the sufficiency of the evidence to sustain the verdict. The proof as to the purchase of the property by the defendant in error from his son is, in most respects, the same as upon the first trial. The testimony of the defendant in error, and Elton Cheesebrough, is to the effect that at the time the bill of sale of the stock of goods was made, the father held his son's note for $ 688 given in 1879, which, at the time of the alleged purchase, amounted to about $ 800; that Moses Cheesebrough let the son have a county order for $ 124, a note for $ 225, and $ 500 in money belonging to Oscar Cheesebrough, and that these items and $ 500 in cash, paid by the father to the son, constituted the consideration for the stock of goods. As upon the first trial, the testimony fails to show what was the consideration for the $ 688 note. Under the evidence we are of the opinion that the jury was not justified in finding that the entire consideration exceeded $ 1,349. The amount named in the bill of sale as the purchase price is nearly twice that sum. Testimony was introduced by the defendant in error tending to show that the stock was not at the time worth more than fifty per cent of the sum written in the bill of sale. Witnesses were called by the plaintiffs in error, who placed the value at more than $ 2,000. There is also testimony in the record, from which the inference could be drawn, that the transfer of the property to the father, was for the purpose of placing it beyond the reach of the creditors of the son. As to the good faith of the transaction, the jury could have found for either party.

If the transfer was colorable and fraudulent, as claimed by the plaintiffs in error, it could be assailed only by the creditors of Elton Cheesebrough. Were the plaintiffs in error in a position to challenge it? The undisputed testimony shows that Moses Cheesebrough was in possession of the goods when they were taken by the plaintiffs in error under the writs of attachment. The writs were introduced, but no other evidence was given on this branch of the case. There is not a line of testimony in the record, tending to show that Elton Cheesebrough was indebted to the plaintiffs in the attachment suits. The writs of attachment were not evidence that an indebtedness existed against the defendant in attachment. The law applicable to this state of facts is well settled in this state. In Oberfelder v. Kavanaugh, 21 Neb. 483, 32 N.W. 295, in the opinion of the court, written by the present chief justice, it is said: "When an officer attaches property found in the possession of the defendant, he can always justify the levy by the production of the attachment writ, if the same is issued by a court or officer having lawful authority to issue it, and be in legal form. But when the property is found in possession of a stranger claiming title, the mere production of the writ will not justify its seizure thereunder; the officer must go further and prove, not only that the attachment defendant was indebted to the attachment plaintiff, but that the attachment was regularly issued."

This same doctrine has since been recognized and applied in Williams v. Eikenbury, 22 Neb. 210, 34 N.W. 373; Paxton v. Moravek, 31 Neb. 305, 47 N.W 919; Williams v. Eikenberry, 25 Neb. 721, 41 N.W. 770. The plaintiffs in error, therefore, did...