Nuckolls v. Tomlin , 9 Neb. 353 ( 1879 )

Cobb, J.

Upon examination of the record in this case, I am satisfied that the petition fails to state facts sufficient to constitute a- cause of action. It nowhere states' the value of the property which came into the hands of Tomlin and MeComas as the assignees of Ware, nor that the same was sufficient to pay the judgment which he prays against them; nor does it set out the deed of assignment or state its terms as to the manner of the execution of the trust thereby created. It would seem that the plaintiff was aware of the defects in his petition before the trial, as he obtained leave to amend his petition, but filed no amended one. It is equally obvious that had the petition contained, and set forth the cause of action which the pleader contends that it does, the answer sets out no defense to it. Before the adoption of the code, where an assignee was remiss in executing the trust, as when he neglected to collect the assets and render them available, or to settle the conflicting claims of creditors and adjust the respective amounts to be paid to each, the appropriate proceeding was by bill in equity to enforce a settlement of the accounts of the assignee, and a distribution of the assets among the creditors. No action at law could be maintained by a creditor against the assignee until his accounts had been settled and a decree made for a distribution. See Burrill on Assignments, pp. 664, 665, and authorities cited in notes. Now, although the names of the actions and the difference in the forms between actions at law and suits in equity have been abolished, yet the difference in the kinds of relief to which parties are entitled upon different .states of facts remain the same in the very nature of things. And it is quite clear that neither the facts stated in plaintiff's petition or proved at the trial show him to be entitled to the judgment which he prays, nor yet to that relief which his counsel claims for him in his brief and. at the bar of this court.

The judgment of the district court is therefore

Affirmed.