McCord v. Weil

• Decision Date: 17 February 1892
• Citation: 51 N.W. 300,33 Neb. 868
• Parties: MCCORD ET AL. v. WEIL ET AL.
• Court: Nebraska Supreme Court

33 Neb. 868

51 N.W. 300

MCCORD ET AL.

v.WEIL ET AL.

Supreme Court of Nebraska.

Feb. 17, 1892.

Syllabus by the Court.

1. Where an insolvent debtor executed two or more chattel mortgages upon all his property to secure debts of the mortgagees and a debt of a third party, the mortgagees took immediate possession, whereupon a judgment creditor, in whose favor an execution had been returned unsatisfied, applied for a receiver. The district court, upon the proofs before it, having appointed such receiver, held no error.

2. An order appointing a receiver is a final order, which may be reviewed in advance of the main case; overruling McCord v. Weil, 46 N. W. Rep. 152.

On rehearing.Churchill & Carr, Churchill & Rich, and Chas. A Goss, for appellants.

Montgomery & Jeffrey, for appellees.

MAXWELL, C. 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 creditors' bill brought by the plaintiffs against the defendants. The defendants answered separately. Afterwards the plaintiffs, 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 appli cation 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, wooden-ware, 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 St., city of Omaha, Neb.; 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 buck-board 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, with out unnecessary delay, to sell and convert into money said property, in such manner as in his judgment will be to the best interests 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,...