Cleland v. Anderson

• Decision Date: 17 March 1904
• Citation: Cleland v. Anderson, 98 N.W. 1075, 66 Neb. 276 (Neb. 1904)
• Parties: J. C. CLELAND ET AL. v. GEORGE F. ANDERSON ET AL
• Court: Nebraska Supreme Court

98 N.W. 1075

66 Neb. 276

J. C. CLELAND ET AL. v. GEORGE F. ANDERSON ET AL

Supreme Court of Nebraska

March 17, 1904

AFFIRMED.

SEDGWICKJ. BARNES, J., dissenting.

OPINION

SEDGWICK, J.

In each of the two former opinions in this case, the conclusion is based upon the proposition that a right of action in tort upon which a suit is pending, passes to a trustee in bankruptcy under the fifth subdivision of the section of the bankruptcy act discussed in those opinions.It is assumed that our statute, which provides that a pending action in tort survives upon the death of the plaintiff, would enable ordinary creditors of the decedent to reach the cause of action in satisfaction of their claims.This is assuming a premise which is, to say the least, doubtful, and, even if sound, will not support the conclusion derived therefrom.If a right of action in tort, upon which an action is pending, may under our statute be classed in any sense as property, it does not follow that it is included in the fifth subdivision of the federal statute in question.That statute classifies these matters for itself; it specifies, first, documents; second, interests; third, powers; fourth and fifth, property; and sixth, rights of action.Upon such a classification, it will not do to say that rights of action are property.The plain intention of the statute, is to otherwise classify them and to distinguish, for the purpose of this classification, between property and rights of action.The sixth subdivision, therefore, must be taken to specify all rights of action that pass to the trustee in bankruptcy; and, as the right of action involved in this case is not included, it follows that it did not pass.

Upon the last hearing, it was contended that the claim upon which the action is founded is not in tort, but is for injury to property, under the sixth subdivision of the section of the federal statute in question.The argument is that by the action of the defendantsthe plaintiff's business was destroyed, and that business is property, within the meaning of the statute.The gist of the action was the "unlawful conspiracy and combination of the defendants to prevent competition, regulate prices, and control the purchase and sale of lumber."The resulting injury to plaintiff was that he was "driven out of business as a dealer in lumber and forced into bankruptcy."The conspiracy was, of course, a tort against the plaintiff and...