Crowell v. Horack

• Decision Date: 25 April 1882
• Citation: 12 Neb. 622,12 N.W. 99
• Parties: CROWELL v. HORACK AND OTHERS.
• Court: Nebraska Supreme Court

12 Neb. 622

12 N.W. 99

CROWELL

v.HORACK AND OTHERS.

Supreme Court of Nebraska.

Filed April 25, 1882.

Appeal from Stanton county.

J. C. Crawford, for appellants.

E. F. Gray, for appellee.

MAXWELL, J.

On the twenty-third of June, 1881, the plaintiff filed a petition against the defendants in the district court of Stanton county, in which he prayed for the following relief: First, for judgment against Waclaw Horack for the sum of $365, with interest from the fifteenth day of December, 1880; second, for an injunction to restrain Mary Horack from receiving a county warrant of Stanton county, drawn in her favor, for the sum of $88; third, to restrain J. Eberly, county clerk of said county, from delivering said warrant to said Mary Horack, or any other person for her; and that upon the final hearing said warrant may be declared to be the property of Waclaw Horack, and be applied to the payment of the plaintiff's claim. A temporary order of injunction was granted by the county judge of Stanton county, restraining “one F. Zander from paying the amount due upon a certain promissory note against F. Zander and in favor of said Waclaw Horack, for $100.” Also enjoining “one McGivern from collecting and paying or delivering to said Waclaw Horack * * * any money, credits, or property,” etc. Also to enjoin Mary Horack from receiving, or the county clerk from delivering to her, said county warrant for the sum of $88. The injunction was dissolved on the twenty-eighth of July, 1881. Four days after the commencement of the action a motion was filed by the plaintiff to make F. Zander, F. McGivern, James Horack, Sarah Horack, and Mary Horack, parties defendant to the action, and praying for an injunction to restrain them from paying or receiving the money due upon the note and warrant heretofore described. What action, if any, was taken upon this motion, does not appear. In November, 1881, judgment was rendered against Waclaw Horack, and in favor of the plaintiff, for the sum of $398.80 and costs; and the court found that the defendants were guilty of the frauds charged in the petition, supplemental petition, and motion and affidavits for injunctions, and that the county warrant is still in the possession of J. Eberly, and was fraudulently caused to be drawn in favor of Mary Horack, and directing the sheriff to indorse and receipt the warrant in the name of Mary Horack, and enjoining Eberly from delivering said warrant to Mary Horack, etc. The Horacks appeal to this court. The plaintiff now moves to dismiss the appeal upon the ground that an appeal will not lie in such case--in other words, that this is an action at law.

The principal ground of relief sought in the petition is for an injunction, and, as the appeal is from a decree of the district court making the injunction perpetual, the action to that extent, at least, is one in equity, and is appealable. The motion must, therefore, be overruled.

The plaintiff in his petition, after setting forth the cause of action against Waclaw Horack, states that, for the purpose of defrauding his creditors, Horack sold his personal property, including 12 road scrapers afterwards sold to Stanton county, to his wife, Mary Horack; that he is wholly insolvent, and has no means to pay the plaintiff's claim, except such as may be derived from the sale of the personal property sought to be applied in this case; that on the twentieth day of June, 1881, Mary Horack sold and delivered 12 road scrapers to Stanton county; that the clerk of said county drew a warrant in favor of said Mary Horack for the sum of $88, which warrant was duly signed and sealed,...