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be collected as in other cases. Whenever any contested claim shall be finally allowed, or so much thereof as shall be finally allowed, shall be entered of record in like manner as other claims.
SEC. 19. [Appeal.]-No petition in error shall be allowed from the judgment of the county court upon a contested claim, but either party may appeal therefrom as in other cases. Upon such appeal the cause shall be docketed in the district court within twenty days after the filing of the appeal bond, and shall stand for trial at the next term of the district court thereafter, or at the same term if the court shall be in session at the time it is docketed, and upon the same pleadings upon which the same shall have been tried in the county court; Provided however, That the court may for sufficient reason grant a continuance to either party as in other cases, and may order any pleading to be amended, or allow any pleading or pleadings to be withdrawn, and a motion or demurrer to be filed in lieu thereof. In all other respects the cause shall proceed as nearly as may be as in other cases.
SEC. 20. [Sale.]-Immediately upon the return of the inventory and appraisement, and the approval of the bond of the assignee, if one shall have been chosen by the creditors, the assignee shall proceed to advertise for sale and sell the assigned estate in all respects as though the same had been taken on execution, issued out of the district court. Real estate so sold shall be conveyed by the assignee to the purchaser or purchasers of the same by a deed or deeds of conveyance, executed and acknowledged as in other cases, which shall convey all the interest the assignor had in the property sold at the date of the assignment. Before such conveyance shall be made the proceedings on such sale shall be returned to and confirmed by the district court or judge as in case of sales of real estate on execution, and the court or judge may set said sale aside or make any order in the premises as in case of such sales on execution. No notice of an application to have such sale confirmed need be given to any person, but any party interested may appear and resist the confirmation, and the application may be made by any person interested, and the assignee may be compelled by attachment by the court or judge to make the return with all reasonable dispatch. Provided however, That the creditors at their first meeting may, by a like vote as that required for the election of an assignee, require any portion or all the personal property assigned to be sold at private sale. Upon such request the county judge shall make an order that the personal property described in the request shall be sold by the assignee at private sale, and shall direct the mode of such sale, whether the same, being merchandise, shall be sold at retail or in job lots, or both, or otherwise, and whether upon any or upon what notice or advertisement, and such sale shall be solely for cash. Nor shall any such property be sold at private sale for less than its appraised value, except upon written application of a majority in amount of the claims voted upon the election of the assignee, fixing the price, and on order of the county court. The court shall also direct by order who shall be employed, if any one, to assist at such private sale, and the amount of his or their compensation, but such private sale shall not continue longer than sixty days after the making of the order authorizing the same. At the expiration of such time the remainder of such estate, if any, shall be immediately advertised and sold in the manner herein before provided.
SEC. 21. [Report of sale.]-Immediately upon the sale of any portion of the estate, the assignee shall report to the county court the description or descriptions of the property sold and the amount received for the same and shall retain such proceeds subject to the order of the court. He shall also make a like report between the first and fifth days inclusive of every calendar month after his appointment.
SEC. 22. [Distribution of funds.]-At the expiration of three months from the date of the inventory and appraisement, or sooner if, and as often as, the assignee shall be in the possession of sufficient funds, the county court shall order a distribution of all moneys in the assignee's hands, fixing the amount in dollars and cents to be paid to each person entitled thereto, and thereupon the assignee and his sureties shall become
liable to such person therefor absolutely. The court may also enforce obedience to such order by the assignee by attachment for contempt, and may commit him to the common jail of the county, or any other suitable place of confinement and safe keeping until he shall comply therewith.
SEC. 23. [Same.]-As soon as the entire estate shall have been converted into money the county court shall make a like order for the final distribution thereof, which shall have the same effect and may be enforced in like manner as the order mentioned in the last preceding section.
SEC. 24. [Same.]-Moneys coming into the hands of the assignee shall be distributed in the following manner: First. To the payment of the fees and allowances of the assignee, county judge, clerks, sheriff, and officers. Second. To the payment of any public tax or assessment charged against the assignor or assignors or his or their property. Third. To the payment of preferred claims in full. Fourth. The balance shall be divided among the creditors, so that the amount paid to each shall bear the same relation to the whole sum to be so divided that the amount of such creditor's claim shall bear to the aggregate amount of all the claims proven. [Amended 1887, chap. 7.]
SEC. 25. [Contested claims.]-If at the time any order of distribution is made there shall be any contested claim still being litigated, a dividend shall be declared in its favor in all respects as though the same had been finally allowed, but the assignee shall be directed, in the order of distribution, to retain the same in his hands until the litigation shall be finally determined, and he shall retain the same accordingly. When it shall be certified to the county court by the clerk of the court in which any such action is pending, that litigation therein is finally determined, and that the time for appeal or proceedings in error therein has expired, or has been waived, the county court shall make a further order determining the amount of such dividend to which such claimant shall be entitled, if any, and directing the assignee to pay such amount to such claimant and retain the balance of such dividend, if any, to be distributed in the same manner as other funds belonging to the estate.
SEC. 26. [Final order of distribution.]-When all the estate has been converted into money, and all the contested claims have been finally determined and the result thereof certified to the county court as aforesaid, the court shall make a final order of distribution, which shall be immediately obeyed.
SEC. 27. [Discharge of assignee.]-When the final order of distribution shall have been made, and the assignee shall have made return and satisfactory proof that he has obeyed all orders of distribution and paid the money as therein directed, the county judge shall enter an order discharging the assignee and the sureties upon his official bond from all liability on account of said trust; but before such order shall be made, a time shall be fixed for hearing the matter, and notice thereof shall be given in the manner provided with reference to the first meeting of creditors.
SEC. 28. [Fees.]-The following and no other fees and allowances may be allowed and paid out of the assigned estate, viz: To the attorney or person draughting the deed of assignment, ten dollars; to the county clerk for recording the deed of assignment and bond of assignee, the fees allowed by law for other like services; to the sheriff and appraisers for making and returning the inventory and appraisement, such compensation as may be allowed by the county court, not exceeding two dollars per day each for time necessarily employed; to the county judge for preparing and serving each notice required to be given by him, including his certificate or proof of service thereof, ten cents, besides postage actually paid; for filing and preserving each paper or document required to be filed or preserved in the matter, five cents; for allowing each uncon tested claim and entering the same of record, ten cents; for recording the inventory and appraisement, and any other paper or document required to be entered of record, other than uncontested claims aforesaid, five cents per hundred words, Arabic numerals not being counted in such computation; for making and entering each order of distribution, not exceeding three orders in any one matter of assignment, five dollars; for making
and entering any other order in the proceeding, fifty cents; for attending each meeting of the creditors, for each day's attendance, one dollar; for a certified copy of any order made by him, fifty cents; to the clerk of the district court for entering any order respecting the sale of real estate, such fees as are allowed in civil actions for like services; to the publisher of any newspaper for the publication of any notice required to be published in such proceedings, fifty cents per square of unleaded nonpareil type for the first insertion of such notice, and one-half said amount for each subsequent insertion; to the assignee such sum as may be allowed by the county judge, not exceeding ten per cent on the first $1,000 distributed, and five per cent on the excess, unless at the said first meeting of creditors they shall by a like vote as that for a request for sale of goods at private sale agree with the assignee upon a different sum; to persons employed to assist in the assignee in the private sale of personal property ordered to be so sold, such compensation as may have been previously fixed by the county judge, but the aggregate of such allowances shall not exceed the fees and commissions allowed to the assignee; to attorneys for prosecuting or defending any suit by or against the assignee or affecting the assigned estate, such sum as may be agreed upon in writing by a majority in number and twothirds in amount of the creditors whose claims have been proven at the expiration of the time fixed for proving claims against the estate; to the assignee such sums as may have been necessarily expended for drayage or rent, fuel and lights and insurance; such judgments for costs as may have been rendered against the assignee in actions prosecuted or defended by him upon the written direction of a majority of the creditors owning two-thirds in amount of the uncontested claims proven and no other.
SEC. 29. [Assignment void when.]-Every such assignment shall be void against the creditors of the assignor: First. If it give a preference of one debt or class of debts over another, except a preference to any person of not more than $100 for labor or wages. Second. If it require any creditor to release or compromise his demand. Third. If it reserve any interest in the assigned property or any part thereof to the assignor or assignors, or for his or their benefit, before his or their existing debts have been paid. Fourth. If it confer any power upon the assignee, other or different from those contained in this act. Fifth. If the assignor or assignors shall fail to make the inventory required to be made by him or them by this act, within the time required by this act, the assignment shall not be void, but that the county court may by attachment or other proper remedy compel the making and return thereof by the assignor. But an omission of any property, or of the name or claim of any creditor therefor, shall not avoid the assignment. [See note at foot of page 80.]
SEC. 30. [Fraudulent conveyance.]-If the assignor or assignors shall have made any fraudulent conveyance or disposition of his or their property, or any part of it, or any conveyance of the same, or any part of it, in whole or in part, directly or indirectly for his or their benefit, the assignee shall upon the direction in writing of a majority in number of the creditors owning two-thirds in amount of all the claims proven against the estate at the time fixed for proving the same, begin and maintain an action for the purpose of setting said conveyance aside, or having the same adjudged void, or to re over the property so conveyed; and in such action he shall have all the rights and be entitled to all the remedies of a judgment creditor of the assignor or assignors; and if in such case a like action shall be pending in favor of any creditor or creditors, such assignee shall be substituted as plaintiff. If the assignee shall be unsuccessful in such action, the costs adjudged against him shall be paid out of the assigned estate. If he shall be successful, the property so recovered shall be disposed of as other like property belonging to the assigned estate.
SEC. 31. [Power of county judge.]-The county judge may at any time cite the assignee to make an account, and shall do so whenever the assignee neglects or refuse to account at any time when he is required so to do by this act. The county judge may enforce his orders in the premises by attachment as for contempt, and may punish disobedience thereto by fine and imprisonment, as in other cases of contempt..
Upon complaint of any creditor, and upon good cause shown, he may remove any as signee chosen by the creditors and restore the sheriff to the execution of the trust and make all necessary orders in the premises. be as
SEC. 32. [Partnership assignments.]-A co-partnership estate may signed without including the individual property of the persons composing the co-partnership, or one or more of such persons may include his or their individual estate in such assignment; but in such case separate inventories of the property, and creditors of such estate shall be made and filed as in this act provided; and in such case the fail. ure of the assignment as to one estate shall not affect it as to any other; and in such case the co-partnership estate shall first be applied to the payment of co-partnership debts, and individual estates shall first be applied to the payment of individual debts, and the balance, if any in the latter case shall be applied to the payment of debts of the former description, while the balance, if any in former case belonging to an individual partner shall be applied to the payment of his individual debts.
SEC. 33. [Rights of creditor.]-The existence of an assignment, nor the fact that any creditor has proven his claim against an assigned estate, shall not affect the right of such creditor to pursue any remedy at law or in equity for the collection of his claim against all or any of the assignors or all or any of their estate or property; nor shall the proving of a claim against either an individual or a copartnership estate affect the right of a creditor to attack the validity of the assign
SEC. 34. [Examination of assignor.]-The county court may, upon the application of the assignee, or of any creditor compel, by citation or attachment, the assignor or assignors to appear in person forthwith or at such time as the court may fix, and answer, under oath, such questions as may be put to them, or either of them, concerning the matter of the assignment; and such assignor or assignors may thereupon be fully examined, upon oath, as to all matters touching their estate or property, its situation and amount, and as to whether any and what disposition has been made of the same or any part thereof, and as to the names of creditors, their residence, and the amount due each; and may compel the completion or correction of any inventory made by the assignor or assignors, and the delivery of any money, choses in action, or property belonging to the assigned estate to the assignee, and may compel obedience to his orders in the premises, by fine or imprisonment as for contempt as in other
SEC. 35. [Garnishment of assignor's debtors.]-The county court may also when there shall be filed an affidavit by any person interested in the estate, alleg ing that any person or persons has or have, or that the affiant has good reason to and does verily believe that any person or persons has or have any property, goods, chattels, bills of exchange, promissory notes, credits, or effects of the assignor or assignors, in his or their possession, or under his or their control, or has or have knowledge of any of the property or effects of the assignor or assignors, cite any such person or persons to appear for examination; and such person or persons may be examined, upon oath, in all respects, as to such matters as the assignor or assignors may be required to appear and be examined under the provisions of this act; and the court may make any order with respect to any property or effects, found or disclosed to be in the possession or under the control of such person, which he might or could make with respect to property or effects, in the possession of an assignor, and may enforce obedience to his orders in the premises in like manner.
SEC. 36. [Additional inventory.-The assignee shall, from time to time, file in the county court additional inventory and valuation of any property coming into his hands, after the filing of any former inventory, which shall be treated as a part of the original inventory and appraisement.
SEC. 34. County court has jurisdiction to decide relative to exempt personal property. 17 Neb., 466.
SEC. 37. [Claims nou due.]-Proof may be made of claims not due, but in such case a reasonable rebate shall be made in case they do not draw interest, or in case they draw interest at a less rate than may be allowed by law.
SEC. 38. [Suits by assignee.]-The assignee shall have full power, except as in this act otherwise provided, to sue for and recover in his own name as assignee, all and singular, the estate, property, and effects, real and personal, and amounts owing upon choses in action, and to execute and give releases, acquittances, and discharges, and generally to do all manner of things requisite and convenient for the speedy and effectual collection of the estate which the assignor or assignors might or could have made, given, or done, if such assignment had not been made.
SEC. 39. [Jurisdiction of county court.]-Full authority and jurisdiction is hereby conferred upon the county courts, and the judges thereof, to execute and carry out the provisions of this act, and said court shall, at all times be, and remain open for the transaction of business under this act.
SEC. 40. [Appeal and error not allowed-Exception.]—No appeal or proceeding in error shall lie from any order or judgment in any proceeding hereander except the following, to-wit: First. An order allowing or disallowing, in whole. or in part, any contested claim. Second. An order of distribution. Third. An order directing the assignor or assignors, or other persons, to pay money or deliver property to the assignee. Fourth. An order directing the sale of property at private sale or fixing the compensation of assistants thereat. Fifth. A judgment in any action by or against the assignee. Sixth. An order of final settlement discharging the assignee and his sureties. Seventh. Any order made by the county judge in proceedings had under the provisions of section 26.
SEC. 41. [Same-By whom taken.]—An appeal under the second, third, fourth, sixth, and seventh subdivisions of the last preceding section may be taken by any person interested in the [e]state, within the same time and upon giving a bond in the same manner as in case of an appeal from a judgment in an ordinary civil action in said court. Such appeal shall be docketed within twenty days after the making of the order appealed from, and shall stand for hearing at the next term of the district court, or at the same term if the court be in session when it is docketed. The county judge shall certify so much of the record as may be necessary to a clear understanding of the matter in controversy. The district court shall dispose of the matter summarily, with or without pleadings, and upon hearing such testimony as may be offered, and shall make such order in the premises as may be just. The clerk shall immediately certify such order to the county court.
SEC. 42. [Assignment by insolvent.]-If a person being insolvent, or in contemplation of insolvency, within thirty days before the making of any assignment, makes a sale, assignment, transfer, or other conveyance of any description of any part of his property to a person who then has reasonable cause to believe him to be insolvent, or in contemplation of insolvency, and that such sale, assignment, transfer, or other conveyance is made with a view to prevent the property from coming to his assignee in insolvency, or to prevent the same from being distributed under the laws relating to insolvency, or to defeat the object of or in any way to impair, hinder, impede, or delay the operation and effect of, or to evade any of said provisions, the sale, assignment, transfer, or conveyance shall be void, and the assignee may recover the property or the assets of the insolvent. And if such sale, assignment, transfer, or conveyance is not made in the usual and ordinary course of business of the debtor, that fact shall be prima facie evidence of such cause of belief.
SEC. 43. [Preferring creditors.]—If a person, being insolvent, or in contemplation of insolvency, within thirty days before the making of the assignment, with a view to give a preference to a creditor or person who has a claim against him, procures any part of his property to be attached, sequestered, or seized on execution, or
SEC. 41. Supreme court has jurisdiction to review proceedings in district court. 17 Neb., 465.
SECS. 42-44. Legislative intent, to secure an equai distribution of debtor's property. Mortgage given 30 days before assignment to secure past indebtedness with a view to giving preference is void, 46 N. W. R., 251, Cited 48 N. W. R., 272.
SEC. 43. See note at head of chapter.