Howard v. Raymers
| Decision Date | 19 March 1902 |
| Docket Number | 11,408 |
| Citation | 89 N.W. 1004,64 Neb. 213 |
| Parties | SULLIVAN HOWARD, APPELLEE, v. REIN RAYMERS ET AL. APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Hamilton county. Heard below before SEDGWICK, J. Affirmed.
AFFIRMED.
Othman A. Abbott, for appellants.
Hainer & Smith, contra.
HASTINGS C. DAY and KIRKPATRICK, CC. concur.
Two questions seem to be presented in this case. The first one relates to the levy and return of an execution on which the creditors' bill which constitutes the action is based. The plaintiffs, having recovered a judgment in the Hamilton-county court, and filed transcript in the district court, procured an execution on which the sheriff indorsed "After diligent search, I can find no goods or chattels whereon to levy and collect this writ or any part thereof," and then levied it on the premises in question in this action. No return seems to have been made to the execution, but the creditor's suit to set aside a deed of the land levied upon was commenced before a return was due. Pending the trial, leave was obtained to make a return to the execution and to file a supplemental petition showing the same. A demurrer to the petition had been previously overruled, and an answer filed. Appellants claim now that these proceedings did not constitute a sufficient foundation for equitable proceedings to set aside the conveyance which is attacked in this action, and cite New York cases, and Weaver v. Cressman, 21 Neb. 675, 33 N.W. 478, and Jones v. Green, 68 U.S. 330, 1 Wall. 330, 17 L.Ed. 553, in support of their position. Weaver v. Cressman merely goes to the extent of holding that a non-resident creditor may not proceed to appropriate funds of a non-resident debtor in the hands of the clerk of a court without first showing that the debtor had no attachable property in this state. Jones v. Green is simply a holding that, before equity would intervene, an attempt at collection by process of law must have been made, but it also holds that, where the execution has been levied upon property fraudulently conveyed, equity will intervene to make such levy effectual on the ground of vindicating the lien acquired by the execution. The same doctrine is asserted in 3 Freeman, Executions [3d ed.], p. 2316, sec. 430. This was the precise position taken by the trial court in this case, and there seems to have been no error in overruling the appellants' demurrer, or in permitting the supplementary petition.
The other question relates to the merits of the case. It is admitted in appellants' brief that the conveyance was voluntary. It is not disputed that the...
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