Berigan Bros. v. Growers Cattle Credit Corp. of Omaha

• Decision Date: 01 March 1968
• Docket Number: No. 36674,36674
• Citation: 182 Neb. 656,156 N.W.2d 794
• Parties: BERIGAN BROS., a Co-Partnership, Appellant, v. GROWERS CATTLE CREDIT CORPORATION OF OMAHA, a Nebraska Corporation et al., Appellees.
• Court: Nebraska Supreme Court

Page 794

156 N.W.2d 794

182 Neb. 656

BERIGAN BROS., a Co-Partnership, Appellant, v. GROWERS CATTLE CREDIT CORPORATION OF OMAHA, a Nebraska Corporation et al., Appellees.

No. 36674.

Supreme Court of Nebraska.

March 1, 1968.

Syllabus by the Court

1. A declaratory judgment action will not be entertained if there is pending, at the time of its commencement, another action or proceeding to which the same persons are parties, and in which are involved, and may be adjudicated, the same issues that are involved in the declaratory judgment action.

2. A declaratory judgment action is not a substitute for nor may it be used to supersede proper proceedings already pending in a court having jurisdiction of the parties and the subject matter. But where a pending proceeding does not afford an adequate remedy for the causes pleaded in a petition for declaratory relief, it is not a bar to such relief.

3. When actual contested issues of law and fact are presented with a definite assertion of legal rights and a positive denial thereof, the requirement of a justiciable issue is met.

4. The Uniform Declaratory Judgments Act is applicable only where there is a present, actual controversy, and only where justiciable issues are presented and all interested persons are made parties to the proceedings.

5. The law favors a remedy which avoids a multiplicity of suits. It also favors a remedy which will speedily determine and settle the diverse rights and obligations of all the parties to a transaction requiring judicial determination.

6. The requisite conditions for obtaining declaratory relief under the Uniform Declaratory Judgments Act are: That a controversy exists in which a claim is asserted against one who has an interest in contesting it; that the controversy is between persons whose interests are adverse; that the parties seeking declaratory relief must have a legally protectible interest or right in the controversy; and that the issue involved is capable of present judicial determination.

Haney, Walsh & Walentine, Omaha, for appellant.

Jack W. Marer, Michael L. Lazer, Omaha, Maupin, Dent, Kay & Satterfield, North Platte, Young, Holm, McEachen & Hamann, Omaha, for appellees.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

CARTER, Justice.

This is an action for a declaratory judgment under the provisions of sections 25--21,149 through 25--21,164, R.R.S. 1943. The trial court sustained demurrers to the petition and dismissed the action. The plaintiff has appealed.

The plaintiff, Berigan Bros., a copartnership, is a livestock commission firm in Omaha, Nebraska, and will hereafter be referred to as Berigan Bros. The defendant, Richardson Ranch Company, is a copartnership engaged in the business of raising cattle and related activities with its principal place of business in North Platte, Nebraska, and will hereafter be designated as Richardson Ranch. The defendant W & S Cattle Company is a copartnership engaged in raising and feeding cattle in Cuming County, Nebraska, and will be hereafter designated as W & S Cattle. The defendants William Wisnieski, Patricia Wisnieski, and Margaret Svoboda are partners in W & S Cattle and will be designated as W & S Cattle except when referred to personally. The defendant Growers Cattle Credit Corporation of Omaha is engaged in the business of financing agriculture, including the raising and feeding of cattle, and will hereafter be referred to as Growers Corporation.

In October 1964, the Growers Corporation filed an action against Berigan Bros., Richardson Ranch, W & S Cattle, William Wisnieski, Patricia Wisnieski, and Margaret Svoboda in which it was alleged: On January 19, 1963, W & S Cattle drew its draft in the amount of $2,111.50 on Growers Corporation which was honored, the proceeds being used by W & S Cattle to purchase 17 head of mixed steers. On January 21, 1963, W & S Cattle drew its draft in the amount of $14,284.45 on Growers Corporation which was honored, the proceeds being used by W & S Cattle to purchase 93 head of steers and heifers. On the back of each draft was a bill of sale of the cattle from the seller to Growers Corporation, the possession of the cattle being placed in W & S Cattle by the endorsements on the drafts. On January 22, 1963, W & S Cattle delivered 110 head of cattle to Berigan Bros. for sale. They were sold for $15,866.94. Of this amount $15,005.60 was paid to Richardson Ranch and $388.12 to W & S Cattle. The remaining balance was used for sale expenses. Growers Corporation claims ownership of the cattle and sues for the conversion of the cattle by Richardson Ranch, W & S Cattle, and Berigan Bros. It is asserted by Growers Corporation that the 110 head of cattle were never removed to Cuming County in the possession of W & S Cattle. This seems to be borne out by the allegation of the petition that the cattle were sold the day after the 93 head of cattle were purchased, to wit, January 22, 1963.

Defendants W & S Cattle, William Wisnieski, Patricia Wisnieski, and Margaret Svoboda filed a general denial. Berigan Bros. filed an answer in which it asserted that the receipts of the sale were paid out on the written directions of William Wisnieski and the insistence of a Mr. Richardson of Richardson Ranch, and that Berigan Bros. had no interest in the cattle other than its commission for selling the cattle. Berigan Bros. further alleged that W & S Cattle has made payments to Growers Corporation in amounts unknown to it and that by reason of the conduct of Growers Corporation the latter has waived what other rights of action it might otherwise have had. Berigan Bros. prayed for an accounting between Growers Corporation, Richardson Ranch, and W & S Cattle, and such other orders necessary to effect equity and justice.

Defendant Richardson Ranch filed an answer in which it asserted that W & S Cattle had established a line of credit with Growers Corporation by which W & S Cattle was authorized to draw drafts on it for cattle purchased and subsequently execute chattel mortgages on the cattle for the amount of such drafts. It is further alleged that Growers Corporation did in fact take a mortgage on the 17 head of steers purchased on January 19, 1963, and other cattle, and caused the same to be recorded in Cuming County. It is alleged that the language printed on the reverse side of the draft is of no force and effect and was not intended as a conveyance of title or a transfer of the cattle to the Growers Corporation. It is also alleged that W & S Cattle negotiated with Growers Corporation for the payment for the 17 steers and made payments thereon which resulted in Growers Corporation estopping itself from recovering on the theory of a conversion of the cattle. Richardson Ranch further alleged that it sold 180 head of cattle to W & S Cattle on August 4, 1962, for $14,600, taking a note therefor secured by a chattel mortgage duly recorded. It is asserted that on January 14, 1963, W & S Cattle sold 167 head of said cattle through Berigan Bros., for $17,262.26 which was paid over to Growers Corporation by W & S Cattle and is entitled to have credit therefor as against any money received by Richardson Ranch claimed by Growers Corporation. It is also asserted that after the sale of the 93 head of steers and heifers, Growers Corporation negotiated with W & S Cattle to obtain payment of its outstanding notes, that partial payments were received from time to time, and it has thereby precluded itself from denying the authority of W & S Cattle to sell the cattle or to sue for their conversion. ...