Alper

This is an action to recover sixty tons of steel rails. At the time the action was commenced the property in controversy was in the possession of defendant Tormey, but at the trial he expressly disclaimed all interest in the rails. Subsequent to the commencement of the action defendant Wittenmyer, as assignee of the Union Stock Yard Company, an insolvent debtor, filed his complaint in intervention and set up his claim to the possession and ownership of said rails as such assignee. Judgment was entered in favor of the intervener, and plaintiffs appeal from an order denying their motion for a new trial. Appellants contend that the evidence is insufficient to sustain the findings, and the question thus presented, boiled down to its essence, involves the ownership of the rails here in controversy. It is admitted that the rails were owned by the insolvent corporation, and passed to the intervener by virtue of the assignment to him. But it is claimed that they were included in a sale of certain property of such corporation made by the assignee to plaintiff Alper. At the time the action was commenced, the rails were lying upon land owned by defendant Tormey. They had been brought there…