Matthews v. Smith

• Decision Date: 21 June 1882
• Citation: 12 N.W. 821,13 Neb. 178
• Parties: MATTHEWS v. SMITH.
• Court: Nebraska Supreme Court

13 Neb. 178

12 N.W. 821

MATTHEWS

v.SMITH.

Supreme Court of Nebraska.

Filed June 21, 1882.

Error to Polk county district court.

E. Wakely and Groff & Montgomery, for plaintiff.

Clinton, Hart & Brewer, Kellogg & Barrett, and Norval Brothers, for defendants.

MAXWELL, J.

This case was referred to a referee, who found as follows:

“ First. That on the twenty-third of December, 1878, the firm of Beaty & Woods, engaged in the business of general merchandise at Osceola, Polk county, Nebraska, were indebted to the plaintiffs in the sum of $1,852.29, and on the same day, to secure the payment of the same, executed and delivered to plaintiffs a note and chattel mortgage for the sum of $1,776.29, which chattel mortgage was upon a stock of goods of general merchandise of the value of $4,500. That the sum of $76, then due plaintiffs from said Beaty & Woods, was omitted from the amount of said note and mortgage by mistake.

Second. That in the taking of said mortgage plaintiffs acted in good faith, and for the sole and only purpose of securing the payment of the debt due them.

Third. That said chattel mortgage was on the twenty-third of December. 1878, filed and indexed in the office of the county clerk of said Polk county.

Fourth. That said chattel mortgage provided that said sum of $1,776.29 should be paid on demand, without grace.

Fifth. That said mortgage provided that in case of default in the payment of said money thereby secured, said mortgagee could take immediate possession thereof and sell the same at private sale without notice.

Sixth. That said mortgage provided upon a sale of the property the proceeds should be applied to pay the amount due, or to become due, with all reasonable costs pertaining to the taking, keeping, advertising, and selling of said property.”

The seventh relates to a copy of the mortgage.

“ Eighth. That on the same day that said mortgage was executed and delivered to plaintiffs, the plaintiffs made a demand for and took possession of the property mentioned in said mortgage under the provisions of said mortgage, Beaty & Woods consenting to such possession.

Ninth. That upon taking possession of said property plaintiffs commenced to sell the same at private sale, and continued to sell at private sale until after the same was taken in attachment by defendant James Matthews. (The aggregate of such sales is $898.77.)

Tenth. That after plaintiffs obtained possession of said goods under the writ of replevin in this action, they advertised and sold at public sale, under the provisions of the statute relative to the sale of property under chattel mortgage, for the sum of $2,000.

Eleventh. That plaintiff received from the total sales of said goods the sum of $2,898.77.

Twelfth. That plaintiffs paid as costs and expenses incurred in taking, keeping, and selling said goods the sum of $434.

Thirteenth. That plaintiffs paid as attorney's fees for foreclosing said mortgage the sum of $175.

Fourteenth. That the defendant James Matthews, as constable, levied upon, in the possession of the mortgagees, and took and held possession of, said property under and by virtue of valid writs of attachment issued out of a justice court for said Polk county on the seventh day of January, 1879, in favor of each of the defendants Samuel Burns and Max Meyer & Co.

Fifteenth. That on the eighth day of January, 1879, at 11 o'clock A. M., the sheriff of said Polk county received valid writs of attachment in each of the following suits: W. V. Morse & Co. against Beaty & Woods; Tootle & Maul against Beaty & Woods; John O. Farwell & Co. against Beaty & Woods; A. N. Shuster & Co. against Beaty & Woods; and on the same day, at the hour of 3 o'clock P. M., said sheriff, in the presence of two creditable persons, did declare that he did levy said attachments upon the goods in question, the same being in the custody and control of said James Matthews, as constable, by virtue of the writs of attachment in the suits of Samuel Burns and Max Meyer & Co., but said sheriff did not take possession of said goods or appraise the same, or obtain the custody and control thereof.

Sixteenth. That on the sixteenth day of January, 1879, one of the attorneys for Tootle & Maul in the suit against Beaty & Woods filed an affidavit in said action in due form of law, alleging ‘that he has good reason to believe, and does believe, that Clarence N. Buell has property, moneys, and credits in his his posession belonging to said defendants J. M. Beaty and Joseph Woods, and he makes further oath and says that, as he is informed and believes, that the said Clarence H. Buell, as agent for the firm of Smith & Crittenden, of Council Bluffs, Iowa, has property, money, and credits in his possession, as such agent, belonging to said defendants J. M. Beaty and Joseph Woods; and further makes oath and says that, as he in informed and believes, Smith & Crittenden, a firm doing business at the city of Council Bluffs, Iowa, have property, moneys, and credits in their possession at the town of Osceola, Nebraska, belonging to said defendants Beaty & Woods;’ and on said sixteenth day of January, 1879, due notices of garnishment were issued in said action, one directed to Clarence N. Buell, agent for Smith & Crittenden, requiring him to appear and answer, etc., and on the seventeenth day of January, 1879, at the hour of 10 o'clock A. M., said notices were, by the sheriff of said Polk county, duly and legally served upon said Clarence N. Buell, and Clarence N. Buell, agent for Smith & Crittenden, but no notice of garnishment was issued or directed to said Smith & Crittenden.

Seventeenth. That on the sixteenth day of January, 1879, one of the attorneys for W. V. Morse in said suit against Beaty & Woods filed an affidavit in said cause alleging the same facts as stated in the sixteenth finding. Notices were issued the same as stated in the sixteenth finding, and were served at the same time and in the same manner as stated in the sixteenth finding.

Eighteenth. That on the thirteenth day of March, 1879, the attorney for A. N. Shuster & Co. in the case against Beaty & Woods filed an affidavit in said cause, in due form of law, alleging ‘that he has good reason to and does believe that one Hart, whose first or Christian name is unknown, and C. N. Buell have goods, rights, chattels, moneys, etc., in their hands, or under their control, belonging to said defendants, and liable to be applied to the payment of the plaintiff's claim; that on said thirteenth day of March, 1879, notices of garnishment, in due form of law, were issued, notifying said Hart and C. N. Buell to appear and answer, etc., and were on the thirteenth day of March, 1879, at 3 o'clock P. M., duly and legally served by the sheriff of said county upon said Hart and C. N. Buell.

Nineteenth. That no notice of garnishment was issued or served in either of said actions, directed to plaintiffs Smith & Crittenden.

Twentieth. That on the fourth day of February, 1879, W. F. Kellogg and Alvin W. Barrett, partners under the name of Kellogg & Barrett, secured a judgment against said Beaty & Woods, in the county court of Polk county, Nebraska, for the sum of $398.73 debt, and $5.75 costs; that on the thirteenth day of March, 1879, at 8 o'clock A. M., a transcript of said judgment was filed in the office of the clerk of district court of said Polk county, Nebraska; that on the same day, to-wit, March 13, 1879, an execution was duly issued on said judgment out of said district court and placed in the hands of the sheriff of said county, who on the same day returned the same unsatisfied for want of property of said defendants whereon to levy.

Twenty-first. That on the thirteenth day of March, 1879, one of the attorneys for Kellogg & Barrett filed an affidavit in said cause in the clerk's office of said district court, in due form of law, alleging ‘that execution in said cause has been issued and returned unsatisfied for want of sufficient property whereon to levy and collect the same. Affiant further deposes and saith that he has good reason to and does believe that Hart, Smith & Crittenden have property of, and are indebted to, the said James M. Beaty and Joseph M. Woods, partners as Beaty & Woods, the judgment debtors in said cause.’

Twenty-second. That on the thirteenth day of March, 1879, a notice of garnishment, in due form of law, was duly issued notifying Frank B. Hart and Smith & Crittenden to appear and answer, etc. Service of said notices of garnishment was on the same day accepted in writing by said F. B. Hart and Smith & Crittenden by F. B. Hart, their attorney.

Twenty-third. That said Clarence N. Buell, at the time said garnishment proceedings were commenced and served upon him, was the agent of Smith & Crittenden, mortgagees, and as such had possession of the goods mortgaged remaining unsold, and had the proceeds of the goods at that time sold.

Twenty-fourth. That said F. B. Hart was, at the time said garnishment proceedings were commenced and served upon him, the attorney for Smith & Crittenden, and as such had the possession of the proceeds of the goods sold at public sale, to-wit, $2,000, on the day of sale.

Twenty-fifth. That at the time of the commencement of this action plaintiffs were the owners, as mortgagees, of the property in question, and entitled to the immediate possession of the sales.

Twenty-sixth. That Samuel Burns secured a judgment in his said action against Beaty & Woods on the seventeenth day of January, 1879, for $77.29 debt, and $20 costs, and that there is due thereon at this date $114.03.

Twenty-seventh. That Max Meyer & Co. recovered a judgment against Beaty & Woods on the nineteenth day of January, 1879, for $43.50 debt and $28 costs, and that there is due thereon at this date the sum of $80.95.

Twenty-eighth. That W. V. Morse & Co. recovered a judgment in this said action against Beaty & Woods on the fourth day of June, 1879, for $373.36 debt, and $37 attorney's fees, and...