Van Patten v. Burr

Day, J.

l. mohtg-ace validity of. I. The two chattel mortgages and the assignment all bear date November 30th, 1878. The chattel mortgage to Mary R. Burr is made subject to that to J ohn Kuch, and the assignment is subject to both chattel mortgages.

*226 Tbe mortgage to John Nuch was filed for record November 30th, 1878, at 2:54 o’clock p. m. The mortgage to Mary E. Burr was filed for record November 30th, 1878, at 3 o’clock p. m. The assignment to Waterman was filed for record December 2d, 1878, at 8:01 o’clock a. m.

The preponderance of the evidence, we' think, shows that the mortgage to John Euch, though dated on the 30th, was in fact executed and delivered on the 29th of November. But whether executed upon the 29th or the 30th .of November we are satisfied that it was executed and delivered before the assignment, and without any knowledge upon the part of Euch of the. intention to execute the assignment. The mortgage, so far as the evidence shows, formed no part of the general assignment, but was altogether distinct and separate from it. It was valid at the time of its execution, and is not invalidated by the subsequent execution of the assignment. The court did not err in dismissing the petition as to John Euch.

II. After the evidence had closed, and the plaintiffs had made their opening argument, they filed a reply. The defendant John Euch filed a motion to strike the reply from the files. It was agreed that the court should determine the motion upon the final disposition of the cause. When the court rendered final decree this motion was sustained. The ruling, if erroneous, worked the plaintiffs no substantial prejudice. The evidence had all been submitted when the replication was filed. The cause is triable here da novo. In determining the case we have considered all the evidence introduced. Whether the reply be regarded upon the files or not could make no difference upon the final determination of the case.

Akfirmed.