Kavanaugh v. Oberfelder

• Citation: 37 Neb. 647,56 N.W. 316
• Parties: KAVANAUGH v. OBERFELDER ET AL.
• Decision Date: 20 September 1893
• Court: Supreme Court of Nebraska

37 Neb. 647

56 N.W. 316

KAVANAUGH

v.OBERFELDER ET AL.

Supreme Court of Nebraska.

Sept. 20, 1893.

Syllabus by the Court.

1. A petition in an action in the nature of trover averred ownership generally of certain chattels in the plaintiff. The defendant denied plaintiff's ownership, and alleged ownership in one B. F. S., and a seizure by defendant under proceedings against B. F. S. Held, that the title to the chattels was properly put in issue by these pleadings, and that plaintiff's case was sustained by proof of ownership in Mrs. S. and a chattel mortgage made by Mrs. S. to the plaintiff.

2. The assignment law (Comp. St. c. 6) does not deprive insolvent debtors of their common-law right to prefer creditors. The law merely prohibits preferences (with certain exceptions named in the act) when made in the assignment itself, and preferences made within 30 days before an assignment actually executed, with notice upon the part of the creditor preferred that the debtor was then insolvent or contemplating insolvency.

Commissioners' decision. Error to district court, Platte county; Post, Judge.

Action by Oberfelder & Co., a partnership, against Daniel C. Kavanaugh, for conversion. Plaintiffs had judgment, and defendant brings error. Affirmed.

For former reports, see 32 N. W. Rep. 295;45 N. W. Rep. 471.Bowman & Smith and Pound & Burr, for plaintiff in error.

J. J. Sullivan and Albert & Reeder, for defendants in error.

IRVINE, C.

This cause has twice before been in this court. It is reported in 21 Neb. 483, 32 N. W. Rep. 295, and 29 Neb. 427, 45 N. W. Rep. 471. The former opinions contain a full statement of the facts. A third trial resulted in a verdict in favor of Oberfelder & Co., the plaintiffs below, for $2,072, and the defendant, this time, prosecuted error. It is claimed that the court erred in giving certain instructions submitting to the jury the question as to whether B. F. Stump or Mrs. Stump was the owner of the goods in controversy. No exceptions were taken to the giving of these instructions, and they are therefore not presented to this court for review. If, however, the plaintiff in error is correct in his theory that the ownership of the goods was not put in issue by the pleadings, the point is probably preserved by the assignment of error that the verdict was not sustained by sufficient evidence, and that it is contrary to law, the estoppel pleaded having been held bad in 29 Neb. 427, 45 N. W. Rep. 471, and not having been submitted to the jury upon the third trial. It is true that the plaintiffs below did not allege that the goods belonged to Mrs. Stump, and that they derived title through her. They do, however, allege ownership in themselves, and issue was joined by the answers alleging ownership in Stump, and a seizure upon process directed against him. We do not think it necessary for the plaintiff in an action of trover to trace in his petition the devolution of title to himself; and, while the evidence shows that Oberfelder & Co. claimed ownership under a mortgage, and not absolute ownership in the goods, we think evidence of such title was admissible, under a general allegation of ownership; especially since the case has been twice considered by this court, and each time the true state of the title was treated as having been properly put in issue.

Plaintiff in error next argues that, conceding Mrs. Stump to be the owner of the goods, the mortgage to Oberfelder & Co. was fraudulent as against creditors. The argument is that, at the time the mortgage was given, Mrs....