T. A. Shaw & Company v. Robinson & Stokes Company
| Decision Date | 21 April 1897 |
| Docket Number | 6997 |
| Citation | 70 N.W. 953,51 Neb. 164 |
| Parties | T. A. SHAW & COMPANY v. ROBINSON & STOKES COMPANY ET AL |
| Court | Nebraska Supreme Court |
MOTION for rehearing of case reported in 50 Neb. 403. Rehearing denied.
REHEARING DENIED.
Duffie & Van Dusen, for the motion.
Since the filing of the opinion in this cause, which will be found in 50 Neb. 403, we are reminded by counsel for Shaw & Co. that in addition to the question there decided, viz., the right of an insolvent corporation to prefer one creditor to the exclusion of others, they claim priority as against May Bros. on the ground that their lien upon the fund in controversy was acquired by means of the garnishee process before the execution of the assignment of the Robinson & Stokes Company to the latter. An examination of the record in connection with their motion for a rehearing proves the suggestion of counsel to be well founded. The proposition now contended for was urged in the first brief filed herein although overlooked in consequence of the overshadowing importance of the other question presented, and to which alone the able oral arguments were directed. Briefly stated the contention is that the assignment to May Bros., although authorized by a vote of the directors of the Robinson & Stokes Company, November 15, 1892, and bearing date of the day aforesaid, was not in fact executed or accepted by said assignees until several days thereafter, and not until after the rights of Shaw & Co. had attached under and by virtue of the garnishee process.
We observe that Shaw & Co. are, by their motion for a rehearing and brief in support thereof, designated as appellants; but assuming a proposition as to which we entertain a doubt, viz., that an appeal will lie from a judgment or order of the character here involved, the record was not filed in this court within the six months allowed in order to secure a review by that means. It appears also from the record that said parties have filed a petition in error, in which they assign eleven distinct and separate grounds for the reversal of the judgment below. They will, therefore, be held to have abandoned any attempt to appeal, and to have elected to prosecute their petition in error. (Burke v. Cunningham, 42 Neb. 645, 60 N.W. 903; Woodard v. Baird, 43 Neb. 310, 61 N.W. 612.) In the petition of intervention by May Bros. is alleged the assignment to them, under date of November 15, and in the petition subsequently filed by Shaw & Co. it is alleged that On July 26, 1893, the cause came on for hearing upon the petitions of intervention, without other pleadings, which resulted in a general finding for May Bros., and an order directing the receiver to pay over to them any balance of funds in his hands, the proceeds of the estate of the Robinson & Stokes Company, after deducting necessary costs and expenses of...
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