Maier v. Freeman

Britt, C. The plaintiff Maier, being indebted in the sum of $2898.90 for sheep purchased by him from one Nellis, and conflicting claims being made upon him for the money by several creditors of Nellis, he instituted this action against said creditors and Nellis to compel them to interplead concerning their several pretensions. This being done, after trial the court entered judgment awarding the fund (which Maier had then paid into court) to certain of the defendants who had summoned Maier as garnishee in the course of actions prosecuted by them, respectively, against Nellis. By such determination of the court the demands of Haas, Baruch & Co., a copartnership, and of defendant Perkins are to be first paid, and the fund is sufficient to satisfy them in full; the residue thereof is to be paid to defendant Boyce, and is not sufficient to pay the whole of his claim.

Defendants Freeman, Kimball and Hoskins constitute a copartnership engaged in business in the territory of Arizona, under the firm name of the “Arizona Central Bank,” they having complied with the laws of the territory respecting fictitious names of partnerships, and [11]being authorized to carry on business under that name. They claim the whole of the fund in dispute by reason of a chattel mortgage made by Nellis to them upon the said sheep, and certain other transactions they had with him touching the sheep, before the sale thereof to Maier. The court gave judgment in favor of Freeman and his said copartners against Nellis personally for the unpaid amount of the debt specified in the mortgage—something over four thousand dollars; they appeal from that portion of the judgment which applies the fund to the payment of the attaching creditors. Boyce appeals from so much of the judgment as postpones his demand to those of Haas, Baruch & Co. and Perkins.

The appeal of Freeman, Kimball, and Hoskins presents several interesting questions (some of them not necessary to be now considered) which have been argued by their counsel ably and ingeniously; but in our opinion the judgment adverse to them was right.

On November 28, 1893, before the debt specified in the mortgage became due, the mortgagees agreed with Nellis in writing as follows :

“ We hereby appoint William Nellis as agent to take six cars of sheep to California, one of which goes to San Bernardino and five to Los Angeles, he to turn over the proceeds of said sheep to us, to be applied upon his mortgage to us, which said mortgage covers said sheep. This applies to these six cars only, and extends for ten days only from this date, said sheep to be shipped in our name. Arizona Central Bank, M’tgees.