OPINION
NORVAL, J.
On July
10, 1893, the firm of Rhoads & Sievers, of the city of Omaha
executed an assignment for the benefit of all its creditors
to George A. Bennett, sheriff of Douglas county. The
following is a copy of the deed of assignment:
"This
indenture, made and executed at Omaha, the day of July, A. D
1893, by and between Darius G. Rhoads and William Sievers, of
the county of Douglas and the state of Nebraska, copartners
doing business in the city of Omaha under the firm name and
style of Rhoads & Sievers, parties of the first part, and
George A. Bennett, sheriff of Douglas county, Nebraska, party
of the second part,
"Witnesseth,
that the said first parties, pursuant to the statute of the
state of Nebraska in such case made and provided, and in
consideration of $ 1 to them in hand paid, before the
delivery of these presents, the receipt whereof is hereby
acknowledged, and in consideration of the covenants and
agreements hereinafter expressed, do hereby transfer, assign,
set over, bargain, sell, and convey, give, grant, and release
to the said George A. Bennett, sheriff as aforesaid, party of
the second part, all such property of the said Rhoads & Sievers, copartners as aforesaid, whether the same be real or
personal or mixed, and all our right, title, and interest in
and to any and all property, both real and personal, and also
the stock of goods now on hand located at, and known and
described as follows, to-wit: All that part of lot one (1),
five (5), and six (6), block two hundred and twenty-three
(223), in said city of Omaha, lying and being south of a line
drawn parallel to and fifty feet distance southerly from the
center line of the main track of said Omaha & North Platte
railroad, as now located over and across said block 223, in
the city of Omaha, and all books of account of said Rhoads & Sievers, and all of our notes and accounts or
bills of exchange of whatever name or nature to the said
partnership belonging, and all choses in action and claims
against any and all persons, and more particularly described
in the schedule prepared and this day filed in the office of
the county judge of
Douglas county, Nebraska, according to law; the leasehold
interests of said parties in and to the real estate being
known and described as follows, to-wit: All that part of lot
one (1), five (5), and six (6), block two hundred and
twenty-three (223), in said city of Omaha, lying and being
south of a line drawn parallel to and fifty feet distance
southerly from the center line of the main track of said
Omaha & North Platte railroad as now located over and across
said block 223, in the city of Omaha; to have and to hold the
same under the said sheriff, George A. Bennett, and successor
and successors who may be appointed by the county clerk of
Douglas county, Nebraska, according to law, and their
assigns, in trust, for the use and benefit of all the
creditors of said copartnership of Rhoads & Sievers, as
aforesaid, in proportion to the amount of their respective
claim, the second party, and his successor or successors, in
trust, to make an equal distribution of all such estate,
whether real, personal, or mixed, among all such creditors,
within the time and according to the terms prescribed by the
laws of the state of Nebraska.
"And
we, the said Rhoads & Sievers, do hereby constitute and make
the said second party, and his successors, as assignee of our
estate, our lawful attorney for ourselves as such copartners,
and in our name, place, and stead and for the uses and
purposes aforesaid, and to the use and benefit of the said
creditors aforesaid, as they may be entitled to receive, and
to collect all such funds as may be due and owing to us as
such copartnership, whether upon notes or in any other way,
and to receive and manage and dispose of all said property,
real, personal, or mixed, and to distribute the same and the
proceeds thereof among all our creditors, in proportion to the amount of their respective debts, and giving
and granting to our said attorney full power and lawful
authority in and about the premises, and to use the due
course and processes of law for accomplishing the same, and
in our name make, seal, and execute due acquittance and
discharges therefor, according to law, and under the orders
and supervision of the county court of Douglas county,
Nebraska.
"Witness
our hands this 10th day of July, 1893.
"RHOADS & SIEVERS,
"By
D. C. RHOADS and WM. SIEVERS.
"Witness:
"JAS.
W. CARR.
"STATE OF NEBRASKA, COUNTY OF DOUGLAS, SS.
"Be
it remembered that on this day of July, A. D. 1893,
personally appeared before me, a notary public, duly
appointed, qualified, and acting as such, within and for the
county aforesaid, Rhoads & Sievers, a copartnership composed
of Darius G. Rhoads and William Sievers, doing business under
the firm name and style of Rhoads & Sievers, to me known to
be the identical persons who subscribed the foregoing
instrument and assignment, and acknowledged that they
executed the same as copartners, and that as such the same
was their voluntary act and deed for the uses and purposes
therein set forth.
"Witness
my hand and notarial seal this 10th day of July, A. D. 1893.
"[SEAL.]
JAS.
W. CARR,
"Notary
Public."
The
assignment was delivered to the officer, or his deputy, who
immediately took possession of the assigned estate, filed the
deed of assignment for record in the office of the county
clerk, and three days later the instrument was also recorded
by the register of deeds. Subsequently, C. B. Havens & Co., a
corporation creditor of said insolvent, commenced a suit
against said Rhoads & Sievers, aided by
attachment, and Michael O. Maul, as coroner, executed the
writ by seizing all the assigned property. After the recovery
of judgment in that action the coroner sold the property
under the attachment process, and the proceeds were applied
in satisfaction of said judgment. The person chosen as
assignee by the creditors having failed to qualify, the
sheriff continued in the trust, and as such assignee
instituted this action against Maul, and the sureties on his
official bond, to recover the value of the property so seized
under said writ of attachment. John C. Drexel, having
succeeded Bennett as sheriff, was substituted as plaintiff in
the suit. The trial resulted in a verdict against the
defendants, and from the judgment entered thereon they
prosecute this proceeding.
The
petition in error contains eighty-eight assignments, but we
shall specially notice only the more important of those
argued by counsel.
The
first two assignments of error relate to the substitution of
John C. Drexel as party plaintiff for and instead of Bennett,
whose term of office had expired. A complete answer to this
is that no exception was taken to the order in question at
the time it was made, and the substitution was not pleaded or
raised as a defense in the answer on which the trial was had.
Error
is assigned because the court refused to sustain a motion
made by Drexel that he be dismissed out of the case. To this
ruling the record does not disclose that the defendants
caused an exception to be entered. We must, therefore,
presume that they were then satisfied with the order as made,
and they will not now be heard to urge that it was erroneous.
Exception
was taken to the introduction in evidence of a copy of the
official bond of the defendant Maul, as coroner of Douglas
county. No useful purpose could have been served by the
admission of that instrument in the evidence, since the
execution, delivery, and approval of the bond were alleged by
the petition and admitted to be true by the
answer, so that no prejudice could have resulted to the
defendants from the ruling under consideration.
It is
argued that the petition fails to state a cause of action,
because it appears from the record and proceedings in the
case that John C. Drexel is not the real party in interest in
the suit. Section 5, chapter 6, Compiled Statutes,
relating to assignments, provides that "in every such
assignment the sheriff, and his successor in office, of the
county in which the assignor resides, or if there be two
assignors, in which one of them resides, or if there be more
than two assignors, in which two or more of them reside,
shall be named as assignee." In strict compliance with
this provision the deed of assignment in the case at bar was
made to George A. Bennett, as sheriff of Douglas county, and
his successor or successors in office, in trust. Drexel
succeeded Bennett as sheriff of the county, and the duty of
carrying out the trust by virtue of the statute and deed of
assignment devolved upon the former upon the expiration of
the term of the latter, since the person chosen by the
creditors of the assigned estate failed to qualify or enter
upon the duties of assignee. The assignment was not made to
Bennett as an individual, but to him in his official capacity
as sheriff, and to his successor in office. It is plain that
Drexel is the real party in interest.
Objections
were urged in the trial court...
