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U.S. Supreme Court

Schunk v. Moline, Milburn & Stoddart Co., 147 U.S. 500 (1893)

Schunk v. Moline, Milburn & Stoddart Company

No. 1153

Submitted January 9, 1893

Decided February 8, 1893

147 U.S. 500


A statute of the Nebraska authorizes a creditor in certain cases to bring an action on a claim before it is due and to have an attachment against the property of the debtor. A citizen of Ohio brought an action in the Circuit Court of the United States for the District of Nebraska against a citizen of Nebraska to recover $530.09 which was overdue, and $1,664.04 which was to become payable in the following month, and an attachment was issued under the statute against the defendant's property. The Circuit Court sustained its jurisdiction and gave judgment in plaintiff's favor for both sums.


(1) That the circuit court had jurisdiction notwithstanding the fact that a part of the sum sued for was not due and payable when the action was commenced and the amount actually due and payable was less than $2,000.

(2) That if there were any error in the decision, on which this Court expresses no opinion, the defendant, if desiring to have it reviewed, should have taken the case to the circuit court of appeals.

On the 14th of November, 1891, defendant in error commenced a suit against B. A. Schunk in the Circuit Court of the United States for the District of Nebraska on several notes, some of which, amounting to $530.09, were past due, while the others, amounting to $1,664.04, were not then due. The prayer of the petition was in these words:

"Wherefore the plaintiff prays judgment against the said defendant for the said sum of $530.09, with interest thereon from the respective dates of the notes which are now past due, together with the further sum of $1,664.04, which will become due and payable the 1st and 8th days of December, 1891, with interest thereon from the respective dates of said promissory notes, and the plaintiff prays that it recover a judgment for all of its costs paid out and expended in this action, and

Page 147 U. S. 501

plaintiff further prays for a judgment against said defendant for all reasonable costs of collection of the above-mentioned indebtedness and for a judgment, including plaintiff's attorneys' fees, in the sum of $250."

Under the provisions of the state statutes, an attachment was issued against the property of the defendant. The section authorizing this is in these words:

"SEC. 237. A creditor may bring an action on a claim before it is due, and have an attachment against the property of the debtor, in the following cases: First. Where a debt or has sold, conveyed, or otherwise disposed of his property, with the fraudulent intent to cheat or defraud his creditors or to hinder or delay them in the collection of their debts. Second. Where he is about to make such sale, conveyance, or disposition of his property with such fraudulent intent. Third. Where he is about to remove his property, or a material part thereof, with the intent or to the effect of cheating or defrauding his creditors or of hindering and delaying them in the collection of their debts."

Cobbey's Consolidated Statutes, 1891, p. 1003; Compiled Stats.Neb. 1892, p. 884.

Subsequent sections prescribe the proceedings to be pursued, the regularity of which in this case is not challenged. A demurrer to the petition, on the ground, among others, that no cause of action was stated, was overruled, a motion to discharge the attachment denied, and judgment rendered on May 21, 1892, for the sum of $2,347.50, together with $100 as an attorney's fee. To reverse this judgment, the defendant below, as plaintiff in error, has sued out a writ of error from this Court. chanroblesvirtualawlibrary

Page 147 U. S. 503

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