Dietrich v. Hutchinson

• Decision Date: 08 September 1886
• Citation: 29 N.W. 247,20 Neb. 52
• Parties: CHARLES H. DEITRICH, PLAINTIFF IN ERROR, v. GEORGE D. HUTCHINSON, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

29 N.W. 247

20 Neb. 52

CHARLES H. DEITRICH, PLAINTIFF IN ERROR, v. GEORGE D. HUTCHINSON, DEFENDANT IN ERROR

Supreme Court of Nebraska

September 8, 1886

ERROR to the district court for Adams county. Tried below before MORRIS, J.

REVERSED AND REMANDED.

J. M Woolworth and R. A. Batty, for plaintiff in error.

Thurston & Hall and Dilworth & Smith, for defendant in error.

OPINION

REESE J.

This was an action of replevin brought against the sheriff (Hutchinson), for the possession of a stock of goods levied upon by him, and which was claimed by plaintiff in error, who was plaintiff in the district court.

The petition was in the usual form, and, aside from the simple allegation of ownership contained therein, the issues of fact were formed by the answer and reply. The defendant sheriff answered that the goods in question were at a former time owned by and in the possession of the firm of Benjamin & Hutchinson, doing business in Hastings. That while thus owning the goods they became indebted to certain parties named in large amounts, which were reduced to judgments, and for the satisfaction of which, upon execution, the levy upon the goods had been made. This indebtedness was something over $ 1,900. That for the purpose of paying off this indebtedness the firm sold the property to Benjamin, who undertook and agreed to pay all the said debts, holding and using the goods for that purpose, this undertaking being, in part at least the consideration for the goods, and that this undertaking on the part of Benjamin was well known to plaintiff at the time he purchased the property from Benjamin. It is further alleged, that "for the purpose of defrauding said creditors and fraudulently hindering and delaying the collection of said debts, plaintiff attempted to purchase said property from said Benjamin, well knowing the conditions on which Benjamin received and held the same, without providing for the payment of said debts, and that the firm and its members were insolvent unless said property was used to pay their debts."

The reply consists of a general denial, and the allegations, that in March, 1882, plaintiff was the owner of the property in question, and sold it to Benjamin & Hutchinson for the sum of $ 3,900, for which they executed to him their promissory notes. That afterwards, in contemplation of a dissolution of said firm and a sale of the goods to Benjamin, by reason of plaintiff being the principal creditor, he was consulted as to the transfer, and it was then agreed by all the parties that in case of a dissolution of the firm and the purchase of the property by Benjamin, and the assumption by him of the debts, he should first pay the firm's debts to plaintiff, and that plaintiff should at all times be a preferred creditor. That the sale was made to Benjamin as contemplated, and the agreement made with plaintiff according to the foregoing statement....