Brown v. Work

• Decision Date: 25 November 1890
• Citation: 30 Neb. 800,47 N.W. 192
• Parties: BROWN v. WORK ET AL.
• Court: Nebraska Supreme Court

30 Neb. 800

47 N.W. 192

BROWN

v.WORK ET AL.

Supreme Court of Nebraska.

Nov. 25, 1890.

Syllabus by the Court.

B. was the owner of a stock of goods valued at $4,200 and real estate valued at $1,500, and was indebted to 10 creditors and firms to the amount of $5,000. The largest creditor was R., amounting to $1,800, not yet due. As security to R., B. delivered to him a mortgage on his real estate and a chattel mortgage of his entire personal property. In an attachment proceeding brought by one of the other creditors, held, that the mortgages to R. constituted a fraudulent disposition of the property of B. See Morse v. Steinrod, 46 N. W. Rep. 922, (January term, 1890.)

Error to district court, Johnson county; APPELGET. Judge.D. F. Osgood and C. K. Chamberlain, for plaintiff in error.

S. P. Davidson, for defendants in error.

COBB, C. J.

This cause comes up on error from the district court of Johnson county. On the 18th of August, 1888, plaintiffs, who are defendants in error here, commenced an action in the district court of Johnson county against H. E. Brown, the plaintiff in error here, to recover from him the sum of $420.60, and interest thereon; the same being due for goods and merchandise purchased from them by said Brown. At the time of commencing said action, said plaintiffs filed an affidavit for an attachment against Brown and for garnishee process against one James Russell, as garnishee. The two grounds alleged in the affidavit for attachment were: First, fraud practiced by said Brown in misrepresenting his financial standing in order to obtain the goods on credit; and, second, averring that said Brown had sold and disposed of his property, or a large part of it, for the purpose of placing it beyond the reach of, and of cheating and defrauding, his creditors. An order of attachment was issued and notice in garnishment was served upon Russell and certain other property was attached. A motion was made by Brown to discharge the attachment, supported by affidavits, in which it was sought to controvert the allegations in the affidavit for attachment; and afterwards the plaintiffs filed additional affidavits, sustaining the original affidavit and supporting the attachment. Upon these affidavits a hearing was had by the court after Russell, as garnishee, had answered as such, and his answer was also relied upon in support of the attachment by plaintiffs; and upon this hearing the court found that the preponderance of the proof sustained the attachment, and therefore the motion to discharge the same was overruled, to which said Brown excepted, and brings the cause to this court by petition in error.

Although stated differentially, there is substantially but one error assigned,--that of the overruling the motion of the plaintiff in error to discharge the attachment in the court below. The grounds of the motionwere: (1) Because the facts stated in the affidavit were not sufficient to justify the order; (2) that the statements of fact were not true. The substantial part of the affidavit was that “the defendant has obtained credit to...