Richards v. Yoder

• Court: Nebraska Supreme Court
• Writing for the Court: COBB
• Citation: Richards v. Yoder, 10 Neb. 429, 6 N.W. 629 (Neb. 1880)
• Decision Date: 28 September 1880
• Parties: RICHARDS v. YODER AND OTHERS.

10 Neb. 429

6 N.W. 629

RICHARDS

v.YODER AND OTHERS.

Supreme Court of Nebraska.

Filed September 28, 1880.

The plaintiff in error brought an action in the district court of Cuming county, alleging in his petition, in substance, that on the twenty-third day of August, 1877, the defendant B. Y. Yoder confessed a judgment in the county court of Cuming county, Nebraska, in favor of one R. H. Lacey, for $409.64 and two dollars' costs of court, and the further sum of $37 as an attorney's fee; that to obtain a stay of execution on said judgment the said B. Y. Yoder executed his undertaking with the defendants W. R. Artman and A. W. Mechling, sureties, and filed the same in the said county court; that on the fourteenth day of November, 1877, the said R. H. Lacey, assigned said judgment to the plaintiff; that to indemnify the said sureties against loss and damage, in consequence of their liability upon said undertaking for stay, the said B. Y. Yoder and the said Rebecca Yoder made and delivered to the said sureties a chattel mortgage on certain personal property, which is set out and described in said petition. The consideration and condition of said mortgage were, that whereas, on the twenty-third day of August, 1877, the said B. Y. Yoder confessed a judgment in the said county court of said Cuming county for $409.64 and two dollars' costs, in favor of R. H. Lacey, of said place; and, whereas, the said W. R. Artman and A. W. Mechling entered into an undertaking as sureties for a stay of execution on said judgment: now, if the said B. Y. Yoder shall pay such judgment, interest, costs, and accruing costs at the expiration of said stay, and shall keep the said sureties harmless, then this conveyance to be void; but if the said B. Y. Yoder shall fail to pay said judgment and interest and costs, then the said second parties (sureties) are authorized and empowered to take possession of said property and sell the same, and, after paying all costs and charges, they shall apply the remaining proceeds in payment of said judgment, and pay the surplus, if any, to the mortgagors; that said stay has long since expired, and the said B. Y. Yoder and the said sureties have failed to pay said judgment, or any part thereof; that although the said B. Y. Yoder has failed and refused to pay the said judgment, the said Artman and Mechling have failed and refused to take possession of said property so mortgaged, and sell the same, and with the proceeds pay said...