McCord, Brady & Co. v. Weil

• Decision Date: 17 February 1892
• Citation: 51 N.W. 300,33 Neb. 868
• Parties: MCCORD, BRADY & CO., APPELLEES, v. JACOB WEIL, JR., ET AL., APPELLANTS
• Court: Nebraska Supreme Court

51 N.W. 300

33 Neb. 868

MCCORD, BRADY & CO., APPELLEES, v. JACOB WEIL, JR., ET AL., APPELLANTS

Supreme Court of Nebraska

February 17, 1892

REHEARING of case reported 29 Neb. 682.

AFFIRMED.

Chas A. Goss, and Churchill & Carr, for appellants, cited Feder v. Solomon, 26 Neb. 266; Dwight v. Overton, 35 Tex. 390; Briggs v. Davis, 20 N.Y. 15; 2 Blacks. Com., 326; Leitch v. Hollister, 4 N.Y. 211; Chicago Lum. Co. v. Fisher, 18 Neb. 334; Loeb v. Milner, 21 Id., 392; Knox v. Williams, 24 Id., 630; Studebaker Mfg. Co. v. McCargur, 20 Id., 501; Fuller v. Schroeder, Id., 631; Newlean v. Olson, 22 Id., 717; Lininger v. Herron, 23 Id., 197; Hoffmann v. Mackall, 5 Ohio St. 124; Mfg. Bank v. Bank of Pa., 7 W. & S. [Pa.], 335; Hewitt v. Huling, 11 Pa. 27; McBroon & Woods' Appeal, 44 Id., 92; Clafin v. Maglaughlin, 65 Id., 492; Nelson v. Gary, 15 Neb. 532; Burrill, Assignments, sec. 167; Lininger v. Raymond, 12 Neb. 25; Hamilton v. Lau, 24 Id., 64; Rothell v. Grimes, 22 Id., 526; Leffel v. Schermerhorn, 13 Id., 342; Shelly v. Heater, 17 Neb. 505; Elwood v. May Bros., 24 Id., 373; Grimes v. Farrington, 19 Id., 45; Davis v. Scott, 22 Id., 157; Cowles v. Rickets, 1 Iowa 585; Bonns v. Carter, 20 Neb. 566; Harkrader v. Leiby, 4 Ohio St. 602; Dickson v. Rawson, 5 Id., 218; Page v. Smith, 24 Wis. 368; Norton v. Kearney, 10 Id., 386; Ray v. Gore, 41 N.W. [Mich.], 329; Kohn Bros. v. Clement, 58 Iowa 589; Farwell v. Jones, 63 Id., 316; Gage v. Perry, 29 N.W. [Ia.], 822; Van Patten v. Burr, 52 Iowa 518; Sargeant v. Watts, 22 N.W. [Wis.], 131; Scott v. McDaniel, 3 S.W. [Tex.], 291; Gilbert v. McCorkle, 11 N.E. [Ind.], 296; Aulman v. Aulman, 32 N.W. [Ia.], 240.

Montgomery & Jeffrey, contra, cited: Winner v. Hoyt, 28 N.W. [Wis.], 380; Woonsocket Rubber Co. v. Falley, 30 F. [Ind.], 808.

OPINION

MAXWELL, CH. J.

This case was before this court in 1890 and was dismissed for want of a final order from which to appeal. A rehearing was granted, and after a careful review of the authorities we are of the opinion that an order appointing a receiver is a final order which may be reviewed in advance of the main case. This action is a creditor's bill brought by the plaintiffs against the defendants. The defendants answered separately. Afterwards the plaintiff, by leave of court, filed an amended petition and the original answers were permitted to remain on file as answers to the amended petition. In the amended petition the plaintiff prays for a receiver. The application was based upon affidavits and other evidence, and the court thereupon made an order appointing a receiver and in other respects as follows:

"On the 11th day of February, 1889, this cause came on for hearing upon the petition of plaintiffs, praying for an order, enjoining the defendants and each of them, as prayed in said petition, and for the appointment of a receiver to take charge of and sell the goods, wares, and merchandise and other personal property belonging to the defendant Jacob Weil, Jr., hereinafter described; upon consideration whereof, and of the affidavits of both parties filed herein, the court finds that the plaintiffs are entitled to an injunction and the appointment of a receiver, as prayed in said petition.

"It is therefore ordered that the defendants, and each of them, and all other parties claiming by or through them, or each of them be, and are hereby, enjoined from selling and disposing of the stock of goods, wares, and merchandise belonging to the defendant Jacob Weil, Jr., and consisting of staple and fancy groceries, canned goods, cigars and tobaccos, flour, fruits, vegetables, glassware, woodenware, and crockery, and all articles of merchandise kept and owned by the defendant Jacob Weil, Jr., in the store-room and basement No. 1002 Saunders street, city of Omaha, Nebraska; also all store fixtures, furniture, show cases, scales, lamps, stoves, office desks, etc., counters and shelving, ice chest, oil and gasoline tanks, coffee mills and all other fixtures, etc., used in said store-building and basement and owned by the said defendant Jacob Weil, Jr.; also one white horse about nine years of age, named Charlie; one sorrel horse, about nine years of age, named Red; and one brown pony, about nine years of age, named Billy; also one double-decked delivery wagon, one single seat buckboard wagon, one set double harness, and one set single buggy harness, four horse blankets, one oil tarpaulin for wagon, and two hitching weights.

"It is further ordered, unless the defendants execute and deliver to the plaintiffs a bond with good and sufficient securities, conditioned that said defendants will pay or cause to be paid the judgment in favor of the plaintiffs, and against the defendant Jacob Weil, Jr., as set out in plaintiffs' petition, together with all the costs of this action in case the same shall finally be decided in favor of said plaintiffs, that Edgar Zabriskie be appointed receiver of said goods, wares, and merchandise, and of all the property heretofore described, and the sheriff is hereby directed to deliver the same to said receiver in case he is appointed as aforesaid, who is authorized and required, without unnecessary delay, to sell and convert into money said property in such manner as in his judgment will be to the best interest of all parties concerned, either by advertisement and a public sale thereof, or at private sale as in the ordinary course of business, and to turn said money into court.

"It is further ordered that before said receiver enters upon his duties in case said defendants fail to give the bond aforesaid he shall, as well as the plaintiffs herein, execute and deliver to the clerk of this court their undertaking, with Lewis S. Reed and Henry W. Yates as their sureties, to the defendants in the sum of $ 3,700, conditioned according to law.

"It is further ordered that said receiver make a report of his doings in this behalf. The defendants having elected not to give a bond to the plaintiffs as above provided, the said Edgar Zabriskie is hereby appointed receiver subject to the conditions and with the powers as above set forth."

The question before the court is this, Was the district court justified in appointing a receiver? The plaintiffs in their petition set forth the indebtedness of Jacob Weil, Jr., to them, the recovery of a judgment, and the issuing and return of an execution unsatisfied. They also allege that certain transfers and conveyances of property by said Weil to his mother and others were fraudulent, and for the purpose of defrauding creditors. There is considerable testimony in the record tending to sustain this contention. Mrs. Weil, the mother of Jacob Weil, Jr., claims the property. The bill of sale is as follows:

"Know all men by these presents, that I, Jacob Weil, Jr., of the county of Douglas, and state of Nebraska, in consideration of $ 3,500, in hand paid by Caroline Weil, of Cleveland, Ohio the receipt whereof is hereby acknowledged, do hereby sell and convey unto the said Caroline Weil the following goods and chattels, situate in the county of Douglas, state of Nebraska, to-wit:

"All and singular my stock of goods, wares, and merchandise consisting of staple and fancy groceries, canned goods, cigars and tobaccos, flour, fruits and vegetables, glassware, woodenware and crockery, in fact all articles of merchandise kept and owned by me, situate in store-room and basement number 1002 Saunders street, city of Omaha, Nebraska; also all store fixtures,...