Halpern v. Clarendon Hardwood Lumber Co.

40 S.W. 784, 64 Ark. 132, 1897 Ark. LEXIS 20

• Court: Supreme Court of Arkansas
• Decided: May 15, 1897
• Status: Published

Opinion

Per Curiam.

We are asked in the argument of appellee to dismiss the appeal in this case for the want of proper parties. At the time the final decree of distribution was made in the cases, the receivers had been discharged. The appellant, Halpern, being a general creditor of the corporation, and the assets insufficient to pay all the creditors, he was directly affected by the decree giving priority to the claims of appellees, and had the right to appeal. It is true that the other general creditors were also affected by this judgment. But no motion was made to dismiss the appeal for failure to join such parties therein, as provided by statute. Sand. & H. Dig., §§ -1031 and 1032. The matter is only referred to in the argument. Under such circumstances, we have the discretion to treat the objection as waived, and have concluded so to do in this case.

After consideration of the case on its merits, we conclude that the judgment of the circuit court, so far it concerns the claim of Goldman & Co., must be affirmed. Goldman & Co. claimed a lien upon certain logs in the possession of the defendant company by virtue of proceedings had and concluded in the common pleas court of Monroe county before the appointment of the receivers herein. The circuit court, upon the hearing below, found that Goldman & Co. “ had enforced their lien” before the logs went into the hands of the receivers. Neither the proceedings in the common pleas court, nor the oral evidence introduced before the circuit court, have been preserved in the record. As there is nothing to show to the contrary, we must therefore presume that the finding and judgment of the circuit court upon this matter is correct. But the claims of' W. W. Carter and T. L. Smith stand on different grounds. We see from the petitions filed by them that each of them claims a statutory lien as a vendor of logs sold and delivered to the company. The proceedings to enforce their claims were not commenced until after the property passed into the hands of the receiver. But our statute does not create a lien in favor of the vendor of personal property, but only provides a method for impounding the property to prevent the vendor from disposing of it. Fox v. Arkansas Industrial Co., 52 Ark. 450, and cases there cited; Sand. &H. Dig., §§ 4727 and 4728. After the property of an insolvent corporation has been placed in the hands of a receiver by a valid order of the circuit court, it is too late for the vendor, who sold the personal property to such corporation, to obtain a lien or benefit under this statute. When the assets of a corporation are thus seized, the statute (Sand. & H. Dig., § 1426) requires that they shall be distributed “equally among the creditors, after paying the wages and salaries due laborers and employees;” and those creditors who have not already secured valid liens cannot afterwards acquire them.

So much of the decree of the circuit court as gives the claims of W. W. Carter and T. L. Smith- priority over the claims of petitioner Halpern and other creditors is therefore reversed, and the case remanded for further proceedings.