Monroe v. Reid, Murdock & Company
Citation | 64 N.W. 983,46 Neb. 316 |
Decision Date | 08 November 1895 |
Docket Number | 6215 |
Parties | E. H. MONROE v. REID, MURDOCK & COMPANY ET AL |
Court | Nebraska Supreme Court |
ERROR from the district court of Dodge county. Tried below before MARSHALL, J.
AFFIRMED.
D. B Carey and E. F. Gray, for plaintiff in error.
H. J Whitmore, Montgomery, Charlton & Hall, and Fred W. Vaughan contra.
On the 1st day of April, A. D. 1892, the defendants in error filed a petition in the district court of Dodge county, in which was stated the business in which each was engaged during the occurrences and circumstances set forth in the pleading, connected with the elements of the cause of action; that Reid, Murdock & Co., during the time one Frank H. Scott was in business as stated, sold to him, on credit, quantities of goods and merchandise, and on December 18, 1891, obtained two judgments against him for the amounts of their bills, one for $ 612.87 and one for $ 331.90, upon which executions were thereafter issued, which, on December 19, 1891, were returned unsatisfied for want of property of the judgment debtor on which to levy; that proceedings in aid of execution were instituted, and E. H. Monroe was summoned to appear therein and answer. It was further recited that Raymond Bros. & Co. had an account against Frank H. Scott in the sum of $ 541.27; the Lincoln Packing & Provision Company, a balance due on account in the sum of $ 95.08; Z. T. Leftwich, an account in amount $ 516, each of which was, by the party to whom it was due, prosecuted to judgment, execution issued and returned unsatisfied, "No property found," and in proceedings in aid of execution E. H. Monroe had been summoned to appear and answer; that on September 30, A. D. 1891, Frank H. Scott of defendants was married to the daughter of E. H. Monroe, another of defendants, and it was further averred:
The prayer of the petition was as follows:
"These plaintiffs therefore pray judgment against the said E. H. Monroe for the amount of their said judgments, interest, and costs; that the said Pliny Page Scott and C. B. Morrow be required to bring said notes into court that the same may be canceled, and that the said E. H. Monroe be enjoined from paying the said notes to the said Frank H. Scott, or to Pliny Page Scott, or C. B. Morrow, or to any person whomsoever until the further order of this court, and that the said Frank H. Scott be enjoined from disposing of the said notes and from canceling or destroying the same; that said notes be decreed to be the property of said defendant Frank H. Scott, and the proceeds thereof liable to the payment of plaintiffs' said judgments, with interest and costs thereof; and plaintiffs further pray for such other and further relief as may be just and equitable."
A temporary injunction was allowed and the required bond filed and approved. E. H. Monroe filed an answer in which the allegations of the petition in relation to defendants in error, the business in which they were respectively engaged, the existence of the indebtedness of Frank H. Scott to each and the judgments obtained, the issuance and return of the executions, the institutions of the proceedings in aid of execution were admitted, and it was stated in relation to the supplemental proceedings that in all the cases the answers had been made and the answering party discharged, except in that of Z. T. Leftwich, of which it was alleged there had been no hearing. The marriage of Scott and Monroe's daughter is stated to have occurred December 30, 1891, and not September 30, 1891, as pleaded in the petition. The purchase of the stock of goods by Monroe for the consideration of $ 7,000, the cash payment and execution and delivery of notes for the balance are admitted, but it is denied that the goods were worth more than the amount for which they were sold, and it is further denied that the sale was made to hinder, delay, or defraud creditors of Scott, or to cheat them, or that there was any fraud, secrecy, or conspiracy connected with the placing and keeping the money paid and notes delivered as a consideration for the sale of the goods to Monroe. The allegations of the petition as to Scott's insolvency are also denied, and it is further pleaded:
The reply to this answer was in effect a general denial of all new matter stated in the answer. The defendants in error made application to file an amended petition, which was objected to by plaintiff in error on the following grounds:
To continue reading
Request your trial- Monroe v. Reid
-
Harvey v. First National Bank of Omaha
...and as to liability of guarantor: Watts v. Gantt, 42 Neb. 869; Tolerton v. McClure, 45 Neb. 368; Lihs v. Lihs, 44 Neb. 143; Monroe v. Reid, 46 Neb. 316; Merle v. Wells, 2 Camp. [Eng.] 413; Smith Dann, 6 Hill [N. Y.] 543; Union Bank v. Coster, 3 N.Y. 203; Lawrence v. McCalmont, 2 How. [U. S.......