DocketNumber: No. 5937
Citation Numbers: 44 Neb. 405
Judges: Noeval
Filed Date: 4/4/1895
Status: Precedential
Modified Date: 7/20/2022
This is a proceeding in error to review the order of the •district court of Douglas county distributing the moneys arising from the sale of certain personal property upon executions. The facts upon which the order in question was based are as follows : On the 1st day of June, 1892, the Farmers & Merchants Bank of Fremont recovered a judgment by confession in the district court of Douglas county against one O. S. Higgins for the sum of $500, and on the ■same day Higgins confessed judgment in the same court in favor of D. M. Steele & Co. for $360. An execution was issued upon each of these judgments on the date they were rendered and delivered to the sheriff, who levied the writs on that day upon a stock of merchandise belonging to the ■execution debtor. Two days later Allen Bros, recovered a judgment for the sum of $137 against Higgins before a justice of the peace of Douglas county, and the justice immediately issued an execution thereon and placed it in the hands of the sheriff, who levied upon the same stock of goods theretofore taken under the writs in favor of the Farmers & Merchants Bank and D. M. Steele & Co., •said levy, being made subject to said prior executions. No transcript of the judgment in favor of Allen Bros, was ■ever filed in the district court. On June 3, 1892, judgments were recovered against said Higgins in the justice ■court of Seymour G. Wilcox, in and for Douglas county, in favor of the following named parties, and for the amounts stated : Peycke Bros., for $47.70 debt and $7.70 costs; R. Douglas & Co., in the sum of $101.30 and $7.70costs; and Sahmer-Richardsou Manufacturing Company, for $20.88 debt and $7.70 costs. On the samé
Under the foregoing facts the defendants in error contend that no priority or preference between the eight executions issued out of the district court exists, but that the entire fund was properly ordered by the court applied pro rata in payment of the eight execution creditors, according to the amount of their respective claims.
On behalf of plaintiffs in error it is urged that, as the money arising from the sale -of the property is insufficient to satisfy the several executions, the judgments in favor of D. M. Steele & Co. and the Farmers & Merchants Bank, having been rendered at the same term of court and the executions thereon having been first levied, should be first satisfied in full before any portion of the proceeds of the property should be distributed or appropriated to the judgments subsequently rendered. .
The determination of the question depends upon the construction of section 484 of the Code of Civil Procedure, which provides as follows:
“Sec. 484. When two or more writs of execution against the same debtor shall be sued out during the term in which judgment was rendered, or within ten days thereafter, and when two or more writs of execution against the same debtor shall be delivered to the officer on the same day, no preference shall be given to either of such writs; but if a sufficient sum of mouey be not made to satisfy all executions, the amouut made shall be distributed to the several creditors in proportion to the amount of their respective demands. In all other eases the writ of execution first delivered to the*410 officer shall be first satisfied. And it shall be the duty of the officer to indorse on every writ of execution the time when he received the same, but nothing herein contained shall be so construed as to affect any preferable lien which one or more of the judgments on which execution issued may have on the lands of the judgment debtor.”
By the foregoing section, .where two or more judgments are recovered at the same term of court against the same debtor, and where there is no priority of lien, and executions are issued thereon during such term, or within ten days thereafter, and placed in the hands of the sheriff, whether on the same or different days, no preference shall be given either of said writs, but if the property levied upon is insufficient to satisfy all the executions, the money realized from the sale must be distributed or appropriated to the several execution creditors in proportion to the amounts of their respective judgments. The legislature, by the section quoted, has further provided that “in all other cases the writ of execution first delivered to the officer shall be first satisfied.” In other words, in all cases where executions are not issued during the term at which the judgments are entered, or within ten days after the term, as well as where the writs are received by the officer on different days, the proceeds of the sale of the preperty must be first applied in satisfaction of the execution first delivered to the officer, and so in the order of their priority. By the last clause of the section provision is made saving the rights of preferable lien-holders, but this limitation, or proviso, applies alone to lands within the county upon which the judgment is a lien, and not to lands out of the county where the judgments were rendered, nor to goods and chattels, for upon neither of which does a judgment operate as a lien.
Section 481 was under consideration in Hibbard v. Weil, 5 Neb., 41, and Mr. Justice Gantt, in delivering the opinion of the court, after quoting the section mentioned,
State v. Hunger, 17 Neb., 216, was where several executions issued by a justice of the peace were delivered to the officer on the same day, and it was held that the provisions of section 484 were applicable to executions issued by justice courts, and that the money realized from the sale of the property levied upon must be distributed pro rata among the several judgment creditors.
In the case under consideration, the judgments of D. M. Steele & Co. and the Farmers & Merchants Bank were entered at the same term of court and on the same day, and executions were issued thereon during the term and placed in the hands of the sheriff at the same time. All the other judgments were subsequently rendered iu the justice court and, with the exception of the one in favor of Alien Bros., were transcripted to the district court and executions issued thereon by the clerk thereof at the same term of court the judgments in favor of the Farmers & Merchants Bank and D. M. Steele & Co. were obtained. Does the fact that transcripts of the judgments were filed in the district court and executions were issued therefrom and delivered to the sheriff at the same term the two judgments were procured authorize the applying of the proceeds of the sale in question pro rata upon all the executions issued out of the district court? It is obvious that the question must be answered in the negative, unless the judgments, of which transcripts were filed and entered upon the execution docket, stand upon the same footing with the judgments rendered
The transcriptive judgments of the several defendants in error not being judgments of the district court, the conclusion is irresistible that they are not proratable in the distribution of the fund in question. The clause in section 484, which provides that “in all other cases the writ of execution first delivered to the officer shall be first satisfied,”
We have examined the three cases cited by counsel for the defendants and find them not in point. In Wilcox v. May, 19 O., 408, three judgments were entered at the suit of different creditors against the same defendant in the same court, at the same term, and executions were issued during the term, but on different days, directed to the sheriff of another county, which were levied upon lands of the debtor. The money arising from the sale being insufficient to satisfy all the writs, it was decided that it must be distributed pro rata among the three execution creditors. To the same effect is Clevenger v. Hansen, 24 Pac. Rep. [Kan.], 61. In State v. Hunger, 17 Neb., 216, twenty-four executions were issued upon separate judgments obtained in different j ustices’ courts and placed in the officer’s hands on the same day. It was held that the proceeds of the sale should be applied pro rata upon the several executions. The question we have been considering was not involved in any of the cases above referred to. The order of the district court is reversed and the cause remanded for further proceedings.
Reversed and remanded.