Clough v. Kyne

40 Ill. App. 234, 1890 Ill. App. LEXIS 575

• Court: Appellate Court of Illinois
• Decided: March 13, 1891
• Status: Published

Opinion

Gary, J.

This is an attachment by the appellants against the appellee, Kyne, a resident of Nebraska.

The contest is between the appellants as attaching creditors of Kyne, and the other appellees, residents of Nebraska, claiming under chattel mortgages made by Kyne in Nebraska, upon cattle there, which he afterward shipped to Chicago. The cattle were here sold by a broker and the money stopped in his hands by this attachment.

The appellees (other than Kyne) interpleaded in the suit, claiming the money, and judgment went in their favor, which the appellants seek to reverse.

Many questions raised by the appellants as to the sufficiency of the mortgages, description and identity of the property and the effect of the acts of the respective parties, may be left unconsidered. Parol proof may, on another trial, remove some objections as to the identity of the cattle. Bell v. Prewitt, 62 Ill. 361.

The Nebraska statute makes chattel mortgages void as to creditors of the mortgagor, where the mortgagor retains possession, rinless the mortgage, or a copy of it, is filed in the office of the county clerk of the county where the mortgagor resides. This record does not show a compliance with this statute, as it is silent on the subject of the residence of Kyneat the time the mortgages wére made. It does show his residence in the county when the mortgages were filed, but at a date some months later. Residence at any time being shown there is a presumption that it will continue, but none as to when it began. The presumption is prospective, not retrospective. The Nebraska law governs the mortgages here. Mumford v. Canty, 50 Ill. 370.

The appellees took the deposition of Kyne and read it on the trial. On cross-examination, when the deposition was being taken, the appellants asked him whether the other appellees gave him permission to ship the cattle. Under advice of their attorney he refused to answer. That should be good ground for suppressing the deposition. Thompson on Trials, Sec. 701, note ; King v. Dale, 1 Scam. 513; Cole v. Chotean, 18 Ill. 439.

Had the appellants given any evidence of such permission, this stifling of testimony would have greatly strengthened it. Downing v. Plate, 90 Ill. 268.

But it does not warrant the assumption,of the fact of such permission without any proof. Gage v. Parmelee, 87 Ill. 329.

The court specifically found that the mortgages were valid, to which the appellants excepted, as well as to the general finding against them. This was an essential point in the case of the interpleaders, and being erroneous, the judgment is reversed and the cause remanded.

Reversed and remanded.