Fisher v. Herron

• Decision Date: 12 October 1887
• Citation: 34 N.W. 365,22 Neb. 183
• Parties: W. I. FISHER ET AL., APPELLEES, v. N. HERRON, SHERIFF, APPELLANT. DAVID BOGART, APPELLANT, v. B. F. AND W. I. FISHER, APPELLEES
• Court: Nebraska Supreme Court

34 N.W. 365

22 Neb. 183

W. I. FISHER ET AL., APPELLEES, v. N. HERRON, SHERIFF, APPELLANT.

DAVID BOGART, APPELLANT, v. B. F. AND W. I. FISHER, APPELLEES

Supreme Court of Nebraska

October 12, 1887

APPEALS from the district court of Gage county. Tried below before BROADY, J.

Reversed and remanded with directions.

T. D Cobbey, for appellants.

Winter & Kaufman, for appellees.

OPINION

MAXWELL CH. J.

The partnership of Fisher, Murphy & Nye, of Wymore, was formed December, 1883, and was closed by a general assignment on October 31, 1884. The proceeds of the assigned stock paid the sum of thirty cents and eight mills on the dollar of the indebtedness. After the distribution of the proceeds various creditors brought actions against the individual members of the firm and obtained judgments for deficiency as follows: Sechler & Co., for $ 115.90; Spiral Spring Buggy Co., $ 77.20; L. M. Rumsey & Co., for $ 36.36. Executions were issued on said judgments out of the district court of Gage county on the 20th day of October, 1885, and on the 26th day of that month were levied on lots 3, 4, 5, and 6, in block 10 in Wymore's addition to Wymore, as the property of Benjamin F. Fisher, a member of said firm. Thereupon W. I. Fisher, Orpha R. Nye, and Eliza Bennett brought a joint action to enjoin a sale under said executions.

In June, 1886, a creditor's bill was filed by David Bogart to subject the same property to sale for the payment of a judgment confessed by the individual members of said firm for about the sum of $ 900, being the balance remaining unpaid after his receipt of his share of the proceeds of said assigned firm property. His claim was for money loaned to the firm in June, 1884. These two actions--the one brought by appellees to make perpetual the injunction restraining the sheriff from selling said lots, and the other, brought by Bogart against the appellees to subject the same property to the payment of his judgment--were by stipulation tried together. In the former case the court found for the plaintiffs, W. I. Fisher, Orpha R. Nye, and Eliza Bennett, and in the latter case the court found generally for the defendants. From both of these judgments an appeal is taken to this court.

The question is the same in both cases, viz.: whether the property in question is liable for the debts of Fisher, Murphy & Nye. The testimony shows that B. F. Fisher, the member of the firm of Fisher, Murphy & Nye, and the grantor in the deed, is a brother...