Temple & Love v. Smith & Crittenden

• Decision Date: 30 December 1882
• Citation: 14 N.W. 527,13 Neb. 513
• Parties: TEMPLE & LOVE, PLAINTIFFS IN ERROR, v. SMITH & CRITTENDEN AND OTHERS, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

14 N.W. 527

13 Neb. 513

TEMPLE & LOVE, PLAINTIFFS IN ERROR, v. SMITH & CRITTENDEN AND OTHERS, DEFENDANTS IN ERROR

Supreme Court of Nebraska

December 30, 1882

ERROR to the district court for Saline county. Tried below before WEAVER, J.

AFFIRMED.

Hastings & McGintie, for plaintiffs in error.

Brown & Ryan Brothers, for defendants in error.

OPINION

MAXWELL, J.

In July, 1880, Parker & Sawyer were doing business at Dorchester, and were indebted to various parties from whom they had purchased goods in a very large amount. On the nineteenth day of July, of that year, at about 8 o'clock P.M., they sold their entire stock of goods to the plaintiffs, on credit, for the sum of $ 2,600, taking their unsecured notes therefor, payable in three, six, nine, and twelve months without interest. The inventory was taken between the hours of 8 P.M. on the 19th and 9 A.M. of the 20th, and the plaintiffs thereupon took possession of the goods. The plaintiffs, prior to this time, were in the grain business at Dorchester, and possessed property, the exact value of which does not appear, but of about the value apparently of $ 2,000. On the twenty-second of that month certain creditors of Parker & Sawyer commenced actions against them, and caused the goods in question to be attached as the property of Parker & Sawyer. The plaintiffs thereupon recovered the possession of the same by a writ of replevin. On the trial of the cause the jury returned a verdict in favor of the creditors and against the plaintiffs for the value of the goods, being the sum of $ 2,600.

The errors deemed material will be noticed in their order.

It appears from the record that at the October term of the district court of Saline county, Smith & Crittenden appeared and claimed to have an assignment of all the claims of the creditors, and asked to have the cause transferred to the U.S. circuit court, upon the ground that they were non-residents of the state. This was done. Afterwards the cause was remanded to the district court of Saline county and the attaching creditors reinstated as parties. This is assigned for error.

Sec. 45 of the code provides that: "In case of the transfer of interest the action may be continued in the name of the original party, or the court may permit the party to whom the transfer is made to be made a party."

This is not limited to one transaction, but may be continued as often as a transfer is made. There is no error therefore in that regard.

We fully agree with the attorneys for the plaintiffs in error that to render a sale void as against creditors the fraudulent intent of the seller must have been participated in or at least known to the purchaser. Tootle & Maule v Dunn, 6 Neb. 93. Wake v. Griffin, 9 Neb. 47. Preston...