Dorrington v. Minnick

• Decision Date: 27 May 1884
• Citation: 15 Neb. 397,19 N.W. 456
• Parties: DORRINGTON AND OTHERS v. MINNICK AND OTHERS.
• Court: Nebraska Supreme Court

15 Neb. 397

19 N.W. 456

DORRINGTON AND OTHERS

v.MINNICK AND OTHERS.

Supreme Court of Nebraska.

Filed May 27, 1884.

Appeal from Richardson county.

Martin & Gilman, for appellants.

Reavis & Thomas, for appellees.

REESE, J.

This is an equity case, brought to this court by the defendants from the district court of Richardson county. The uncontroverted facts of the case are as follows: On and prior to the sixth day of March, 1882, the plaintiffs George E. Dorrington and William E. Dorrington were engaged in the merchandising business in Falls City, under the firm name of Dorrington Bros., with a stock of goods claimed by them to be of the value of $6,143.61, and on which there was an indebtedness of $4,767.90. On that day W. E. Dorrington sold his interest in the business to the defendant John W. Minnick for $3,071.80, said Minnick assuming the payment of one-half the indebtedness of the firm, and paying to W. E. Dorrington the remainder of the purchase price, to-wit, $687. The plaintiff George E. Dorrington and the defendant Minnick then formed a copartnership under the firm name of Dorrington & Minnick, and continued the business under that name until about the twenty-second day of April, 1882, when George E. Dorrington sold his interest in the business to Minnick; Minnick assuming the payment of all the debts of the old firm of Dorrington Bros. and of the firm of Dorrington & Minnick. Minnick continued in business until about the eighth day of May, 1882, when he sold the stock of goods to the defendants Collins & Brennin for the sum of $4,000,--$1,000 of which was paid in cash, and $3,000 in three notes of $1,000 each, payable to the wife of Minnick,--and thereupon Collins & Brennin took possession of the store and goods. On the tenth day of May, 1882, the plaintiffs commenced this action, and in their petition alleged the foregoing facts, setting out the names of the creditors, alleging that Minnick undertook and agreed to pay all of said indebtedness; that Minnick thereby became the principal debtor; that by operation of law the plaintiffs became his surety for the payment thereof; that a part of said indebtedness had been paid by Minnick, and Dorrington & Minnick, but that $2,425.50 of said indebtedness remained unpaid; that Minnick had received the possession of said goods charged with the payment of said indebtedness, the goods to be sold by Minnick in the usual course of trade, and the proceeds to be applied as fast as received-- First, to the payment of the debts of Dorrington Bros.; and, secondly, to the debts of Dorrington & Minnick; that the defendants Minnick, Collins & Brennin, on the eighth day of May, 1882, did confederate and combine together to hinder, delay, and defraud said creditors and the plaintiffs; and that the pretended sale and transfer of the stock of goods to Collins & Brennin was fraudulent and void as against said creditors and the plaintiffs. The creditors were all made parties defendant; and the plaintiffs pray that an accounting may be had; the sale to Collins & Brennin be declared void; the amount due the creditors ascertained; judgment rendered for plaintiffs for the amount thus found due; and that all parties be restored to their original rights.

At the same time, the plaintiffs filed an affidavit for an order of attachment as against Minnick, alleging as ground therefor the fraudulent disposal of his property. An order of attachment was issued, and the stock of goods levied upon. The defendants Minnick, Collins & Brennin appeared and each demurred to the petition. The demurrers were overruled, and the ruling of the court on these demurrers is now assigned for error.

The defendants, after the overruling of the demurrers, answered to the merits, and thereby waive this exception. Mills v. Miller, 2 Neb. 308;Pottinger v. Garrison, 3 Neb. 223;Harral v. Gray, 10 Neb. 188;S. C. 4 N. W. REP. 1040. The defendant also filed his motion to discharge the attachment, alleging two reasons therefor: (1) “Because the facts stated in said plaintiff's affidavit are not sufficient to justify the issuance of the writ;” and (2) “because the statements of fact in said affidavit are not true, but are wholly false.”

Defendants insist that the nature of the plaintiffs' claim is not sufficiently stated; that it is ambiguous and uncertain.

Before an order of attachment can be issued, the statute (Civil Code, § 191) requires an affidavit to be filed, showing, among other things, “the nature of the plaintiff's claim.” The affidavit in this case states the nature of plaintiffs' claim to be for “the sum of $2,425.58, now due and payable to the plaintiffs from the said defendant, for breach of contract to pay indebtedness of the partnership firm of Dorrington Bros., plaintiffs herein, which indebtednesssaid Minnick had assumed and promised to pay.” This is a sufficient compliance with the statute.

The second reason alleged in the motion we cannot consider, for the reason that none of the proofs taken by affidavits in suport of or against the motion are preserved in the record. There are copies of affidavits attached to the record which we presume were filed by the defendant in support of his motion, but none purporting to have been filed by the plaintiff. There is no bill of exceptions showing for what purpose those affidavits were filed. It is well settled by this court that such affidavits can only be made a part of the record by being embodied in a bill of exceptions. Oliver v. Sheeley, 11 Neb. 522; S. C. 9 N. W. REP. 689;Aultman v. Howe, 10 Neb. 10;S. C. 4 N. W. REP. 357.

The defendants Collins & Brennin answered, denying each and every allegation contained in the petition. The defendant Minnick answered, admitting the purchase of the goods from the plaintiffs, but denying any lien or reservation of title in their favor, or that the proceeds coming from the sale of the goods were to be applied to the payment of their indebtedness; and alleging that in the sale of the goods by the plaintiffs to him, the plaintiffs...