Yaffe v. Bank of Chelsea

1 The Bank of Chelsea as plaintiff brought this action on a promissory note in the amount of $5,000 executed by Twin River Sales, Inc., a corporation, and endorsed by J.V. Murph and William Yaffe in the District Court of Rogers County against William Yaffe alone. The petition alleges that William Yaffe is a non-resident of the State of Oklahoma and cannot be personally served with summons in Rogers County; that on September 11, 1950, for the consideration of a loan of $5,000 Twin Rivers Sales, Inc. and J.V. Murph and defendant William Yaffe made, executed and delivered the note sued upon by the terms of which they jointly and severally agreed to pay to plaintiff said sum on November 11, 1950, with interest at the rate of 10 per cent from maturity; that as security for said note and on the same date and at the same time and for the same consideration Twin Rivers Sales, Inc., made, executed and delivered a chattel mortgage to plaintiff upon certain property then in Rogers County consisting of TD 18 International Crawler type motor with equipment, a D4 Caterpillar tractor, an air compressor and a welding machine, which mortgage was duly filed of record; that said note was not paid on its due date and no payments of either principal or interest has been made though demand has been duly made; that involuntary bankruptcy proceedings had been theretofore instituted in the United States District Court for the Northern District against Twin Rivers Sales, Inc., in which said company was duly adjudged a bankrupt; that plaintiff duly filed and presented a claim against the bankrupts estate based upon the note here in question and the mortgage lien securing same and asserted the priority of its mortgage lien against all other claimants; that upon hearing plaintiffs claim was duly allowed and the priority of its mortgage established against the air compressor and the welding machine but by the same order plaintiff was denied a lien upon the TD 18 International Crawler type tractor and in the course of the proceedings it developed that the D4 Caterpillar tractor had been disposed of by the bankrupt prior to the institution of the bankruptcy proceedings and was no longer a part of the bankrupts estate; that by the same order the Referee in bankruptcy adjudged that the value of plaintiffs mortgage security was not worth the amount of the lien against it and directed the Trustee in Bankruptcy to surrender said property to plaintiff; that plaintiff is now foreclosing its mortgage against said property but the value of said property will not exceed $500 or $600; that it is highly improbable that the bankrupts estate will be sufficient after all prior claims are paid to pay anything on the note; that J.V. Murph, one of the signers of the note, is a non-resident of Oklahoma and has no property or assets in the state and cannot be personally served with summons in the state; that defendant Yaffe has property in the state, and prayed judgment against him for the sum of $5,000 with interest together with attorneys fees and costs. Affidavits for attachment against property of defendant situated in Rogers and Nowata County were filed and orders of attachment were issued to the sheriffs of said counties and a drag line bucket, a bank drill, and a drag line belonging to defendant were attached. Thereafter summons by publication based upon said attachments was issued against defendant.