Symns Grocery Company v. Snow Brothers

Decision Date03 May 1899
Docket Number8894
Citation78 N.W. 1066,58 Neb. 516
PartiesSYMNS GROCERY COMPANY v. SNOW BROTHERS
CourtNebraska Supreme Court

ERROR from the district court of Phelps county. Tried below before BEALL, J. Reversed.

Reversed.

G Norberg and Hall, St. Clair & Roberts, for plaintiff in error.

Rhea Bros. & Manatt and S. A. Dravo, contra.

OPINION

HARRISON C. J.

E. H. Snow and W. S. Snow, brothers, who were in partnership and in the general mercantile business in Holdrege on June 15, 1895, executed three chattel mortgages, each of which purported to incumber the entire stock of merchandise then in the firm's business room or rooms at the place we have indicated. One of the mortgages was in favor of the plaintiff in this action and the amount stated in it was $ 1,479.41. One was to the United States National Bank of Holdrege, the sum named in it being $ 2,400. Another was made to S. A. Parker, an uncle of the brothers, and the expressed consideration was $ 2,774.75. The firm also on the same day conveyed a piece of city property to one J. J. Parker, who immediately transferred it to Bertina Snow, the wife of W. S. Snow, one of the members of the firm. The real estate thus conveyed was the only property of that nature the title to which then rested in the partnership, or rather was of record in its name. The mortgages were executed in the office of a firm of attorneys in the city about 4 o'clock P. M. of the day and were left with the attorneys to be filed. The plaintiff company and the bank neither had any knowledge of the execution of the mortgage to it, and when such knowledge was received did not accept the action apparently performed for its benefit and in its behalf. Each instituted a suit, in which a writ of attachment was procured to issue and was levied on the stock of merchandise by the officer to whom it was directed and delivered. At the time of the execution of the mortgages the firm of Snow Bros. was indebted to the plaintiff in the sum of $ 1,510.29; to the bank, $ 2,400; the claim of the uncle, S. A. Parker, was $ 2,774.75; indebtedness to other creditors, about $ 1,000; total debts, about $ 7,685.04. The value of the stock of merchandise was $ 4,900. For S. A. Parker there was commenced an action of replevin, and under the writ therein issued possession of the stock of goods was taken and delivered to him. There was a trial of the replevin action, but prior to that trial or a hearing of the attachment portion of the case at bar Parker had foreclosed the chattel mortgage on the stock, offered the whole of the merchandise for sale, and as a whole, and at the sale bid in the stock for about $ 2,600. He made sufficient sales from it afterwards to realize therefrom about $ 1,100, and then turned it over to Hattie A. Snow, the wife of E. H. Snow. In consideration of the transfer to her she gave S. A. Parker her notes aggregating $ 4,900. She, subsequent to the deal by which she gained possession of the goods, purchased the claim of the United States National Bank against Snow Bros. in the amount of $ 2,400, for which she paid $ 1,800. For this latter amount she gave her note to the bank.

The ground for attachment in this action was stated in the affidavit as follows: "That the defendants have sold, conveyed, and otherwise disposed of their property with intent to cheat and defraud their creditors and to hinder and delay them in the collection of their debts, and that defendants are about to sell and convey and dispose of their property with fraudulent intent." There was filed in the action what was styled an "Answer and Motion," which was verified positively and was also made to perform the office of an affidavit in denial of the assertions in the affidavit for attachment. It was objected to as not being sufficient, either as an affidavit or a motion. There was also an objection that the plaintiff had not been notified of any hearing of a motion to dissolve the attachment. These matters we shall pass over and examine into what was developed at the hearing of what at least was treated as a motion to dissolve the attachment.

As a result of the hearing the attachment was dissolved. The plaintiff complains that the defendants should not have been allowed to attack the attachment, since prior to the time of the attack they had transferred the property and had no longer its ownership or possession. This contention cannot prevail. The defendants could be heard to move the discharge of the attachment on the ground of the falsity of the affidavit upon which it was predicated. (McCord v. Bowen, 51 Neb. 247, 70 N.W. 950; Grimes v. Farrington, 19 Neb. 44, 26 N.W. 618; Kilpatrick-Koch Dry Goods Co. v. Bremers, 44 Neb. 863, 62 N.W. 1105; Dayton Spice-Mills Co. v. Sloan, 49 Neb. 622, 68 N.W. 1040; Kountze v. Scott, 52 Neb. 460, 72 N.W. 585; South Park Improvement Co. v. Baker, 51 Neb. 392, 70 N.W. 952.)

It is urged that upon the evidence adduced the trial court should have sustained the attachment; that its decision is clearly wrong and not supported by the evidence. S. A. Parker, the uncle of the two brothers, the members of the firm, was called as a witness, and after stating certain facts in regard to the indebtedness of the firm to him, how it was incurred, etc., further testified of the execution and delivery of the chattel mortgage on the stock of goods by the firm to him, the subsequent foreclosure of the mortgage, inclusive of the sale of the goods and his bid therefor, also of an attempt to sell the stock to an Iowa man, and further as follows:

"Q. What effort did you make to dispose of the goods while you were selling them, if any?

A. After I got the goods the First National Bank,-- one of the members, the president or cashier,--had a conversation with me in regard to having the goods purchased--

Q. The First National or United States National?

A. The United States National--to let Eugene H. Snow and wife take the goods and sell them out. They said that he could manage the goods and get a...

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