Coburn v. Watson

• Decision Date: 06 May 1896
• Docket Number: 6511
• Citation: 67 N.W. 171,48 Neb. 257
• Parties: WILLIAM COBURN ET AL. v. JOHN L. WATSON
• Court: Nebraska Supreme Court

67 N.W. 171

48 Neb. 257

WILLIAM COBURN ET AL. v. JOHN L. WATSON

No. 6511

Supreme Court of Nebraska

May 6, 1896

ERROR from the district court of Douglas county. Tried below before SCOTT, J.

AFFIRMED.

B. G Burbank, for plaintiffs in error.

E. R Duffie, contra.

OPINION

HARRISON, J.

This action was commenced in the district court of Douglas county by John L. Watson on the bond of William Coburn, as sheriff of Douglas county, against William Coburn as principal and the other defendants as his sureties. The alleged cause of action was the conversion of a stock of furniture and musical instruments. A trial of the issues resulted in a verdict and judgment in favor of Watson, from which both parties prosecuted error proceedings to this court. The former judgment was by this court reversed and the cause remanded to the district court. (For the former decision see 35 Neb. 492.) In the district court, in a second trial, Watson was successful and received a verdict and judgment, and the case is presented here by the other parties for review of the proceedings during the second trial.

It appears that a corporation named the New York Storage & Loan Company was, or had previous to February 28, 1888, been engaged, in business in the city of Omaha, and was the owner of the property the alleged conversion of which was the basis of this action, and on the day just stated the corporation, being indebted to John L. Watson for money borrowed by it of him, executed and delivered to him a chattel mortgage covering its stock of furniture and musical instruments, etc., to secure the payment of the debt. Watson then took possession of the goods and conducted the business, and was, under and by virtue of his lien, in possession of the stock on April 24 of the same year. During the afternoon of the last mentioned date, Coburn, as sheriff, levied an execution in favor of W. L. Hall, and against the New York Storage & Loan Company, on the stock and took possession of it, and subsequently levied a writ of attachment in an action wherein Dell R. Edwards was plaintiff and the corporation defendant. George C. Wheeler, who was president of the New York Storage & Loan Company, it appears also did business under the style of New York Music Company, New York Storage Company, New York Piano Company, G. C. Wheeler, and G. C. Wheeler, manager. After the levy of the writ of attachment in favor of Dell R. Edwards, she brought suit against W. L. Hall and the New York Storage & Loan Company, the object being to enjoin the collection of the judgment in favor of Hall and to have it declared void. Afterwards she instituted another action, against John L. Watson, W. L. Hall, the New York Piano Company, the New York Music Company, the New York Storage & Loan Company, G. C. Wheeler, manager, and others, in which she pleaded that the mortgage to Watson was fraudulent and void, and prayed that it be so declared by the court, and further prayed for an accounting by all the defendants and the appointment of a receiver to take charge of the property of the New York Storage & Loan Company and sell or dispose of it. A consolidation of these suits was had. Watson filed an answer in the action after the consolidation of the several suits, declaring on his mortgage and asserting his lien upon the stock of goods by virtue thereof, and stating his possession at the date of the levies of execution and attachment by the sheriff. The court appointed a receiver and ordered the sheriff to deliver to the receiver such of the goods as then remained in his possession and had not been taken from him under process, which the sheriff did, and the goods were sold by the receiver and the sale was confirmed. After issues were joined in the consolidation, the cause was referred to A. S. Churchill, Esq., who was to take the testimony and report to the court his findings both of fact and law. It was determined and reported by the referee that the mortgage to Watson was valid and made in good faith and for a sufficient consideration; that Watson had taken possession of the stock of goods under it and was in possession when the sheriff took possession under the writs; that such mortgage was the prior and superior lien and Watson entitled to its enforcement, and to subject to its payment the entire stock of goods seized under the writs; that the sum due on the mortgage was $ 4,493.62. The referee further determined the W. L. Hall judgment to be fraudulent and void, from which he further concluded that neither Hall nor the sheriff derived any right or title to the property seized under the writ issued on such judgment, and that Dell R. Edwards did not have any cause of action against the New York Storage & Loan Company and hence no right to the attachment, and the levy thereof was set aside and held of none effect. The report of the referee was, on motion on behalf of Watson, confirmed. The present case was brought by Watson two days previous to the appointment of the receiver in the consolidation of actions.

One of the contentions of plaintiffs in error herein, both in pleading and in argument, was and is that by the proceedings and determination in the case in which the receiver was appointed, all matters in issue in the present case were fully adjudicated and determined, and such adjudication constitutes a bar to this action. Counsel for plaintiffs in error outlines the questions which he desires to urge in his brief as follows:

"When an officer levies on a stock of goods in the possession of the mortgagee, at the instance of a creditor of the mortgagor, and, shortly thereafter, a receiver of the property of the mortgagor is appointed on the application of certain of the creditors of the mortgagor, in which action the mortgagee is a party, and the sheriff is ordered by the court to surrender the goods to the receiver, which he does, and said receiver sells those goods, which sale is confirmed by the court, and the mortgagee's lien is held to be a first lien on said goods and he is entitled to the money received from said sale. Quaere: Under such circumstances, is the officer liable as and for a conversion of said stock of goods?

"2. When certain of the goods contained in the mortgage and levy are held by the mortgagor on commission, and after the levy the mortgagee releases said goods from his mortgage, and the officer from his levy. Quaere: Is it error of the court to refuse to allow evidence to show that fact for the purpose of showing...