143 Ind. 433 | Ind. | 1895
The appellees, as separate judgment creditors of several of the appellants, sued them to set aside several conveyances of real estate situate in Lawrence county, made by some of the appellants to others of said appellants, as fraudulent against the creditors of the grantors. The circuit court overruled separate demurrers to each of the three paragraphs of the complaint.
A trial of the issues formed upon the complaint resulted in a special finding of the facts by the court, on which it stated conclusions of law in favor of the appellees, on which they had judgment over appellants’ exceptions to the conclusions of law and their motion for a new trial.
The complaint was in three paragraphs, hut as to the only points of objection urged against each they are exactly alike.
The grounds of objection stated in the demurrers were: (1) That neither paragraph stated facts sufficient to constitute a cause of action; (2) that several causes of action had been improperly joined in the complaint; (3) that there was a misjoinder of parties plaintiff, and (4) a misjoinder of parties defendant.
As to the last two causes of demurrer specified, it is sufficient to say that there is no such cause of demurrer known to the civil code. Burns R. S. 1894, section 342 (R. S. 1881, section 339); Redelsheimer v. Miller, 107 Ind. 485.
As to the ground, of misjoinder of causes, it is provided by statute that no judgment shall ever be reversed for any error in sustaining or overruling a demurrer for misjoinder of causes of action. Burns R. S. 1894, section 354 (R. S. 1881, section 351). Rennick v. Chandler, 59 Ind. 354; Coan v. Grimes, 63 Ind. 21.
Therefore we do not consider the question whether there was a misjoinder of causes or not. That leaves for our consideration only the first ground of objection specified in the demurrer, namely, want of sufficient facts to constitute a cause of action.
Under this objection it is urged that neither paragraph of the complaint stated facts sufficient to constitute a cause of action, for the reason that neither of
A failure to state a cause of action against some of the defendants in a complaint, while it states a cause of action against others, would not make the complaint had as to all, nor he ground for sustaining a demurrer thereto for want of sufficient facts by all the defendants. In such a case the defect can only be taken advantage of by a separate demurrer by the defendants, against whom no cause of action is stated in the complaint. Berkshire v. Shultz, 25 Ind. 523 (527).
The demurrers were by all the defendants naming them and then read : “Demurs jointly, as well as separately and severally, to the first, second and third paragraphs of the complaint, and to each of them separately, and for cause says that neither of said paragraphs state facts sufficient to constitute a cause of action.”
In Carver v. Carver, 97 Ind. 497, the demurrer on page 500 was as follows: “The defendants separately and severally demur to the first and second paragraphs of the plaintiff’s complaint, and for cause of demurrer say that neither of said paragraphs state facts sufficient to constitute a cause of action against them.”
This court there said of that demurrer that: “This demurrer, we think, is separate as to each paragraph of the complaint, but clearly joint as to the parties. The words ‘separately and severally’ cannot be applied both to the separate paragraphs and also to the defendants; we think they apply only to the separate paragraphs. Such would seem to have been the intent of the pleader. ” To the same effect are Hanover School Tp. v. Gant, 125 Ind. 557, at page 558; Axtel v. Chase, 83 Ind. 546.
The assignment of error that the complaint does not state facts sufficient to constitute a cause of action is
Therefore, the question as to whether the complaint is bad as to part only of the defendants for want of sufficient facts, is not presented by the record. But whether each paragraph thereof states facts sufficient as to all the defendants, is presented.
Numerous judgments are alleged to have been recovered by the five plaintiffs against different ones of the defendants.
A fraudulent conveyance of real estate is alleged to have been made by the defendant Wesley Armstrong and his wife to certain other defendants named; another by Abner D. Armstrong and wife to certain of the defendants, and another by Alvin B. Armstrong to.the defendants Edward O. Stanard, Jeremiah Stanard and Erank O. Stanard, who were then defendants in the cause. Their demurrer for misjoinder of causes having been sustained, they were taken out of the case and the alleged fraudulent conveyance to them; and Abner D. Armstrong and Jennette, his wife, have dismissed the appeal as to themselves, and no question raised by them in the assigment of errors or by the briefs will be further noticed.
It is first contended that each one of these alleged fraudulent conveyances constituted a separate and distinct cause of action. That would- not make the facts
It is contended that neither paragraph of the complaint is good, because it does not appear therefrom that all the plaintiffs were jointly interested in the cause of action. Separate creditors may maintain a joint action to set aside a fraudulent conveyance made by their common debtor, and to subject the property thus conveyed to the satisfaction of their several debts. ‘
The joint interest they have in obtaining relief from the fraud and subjecting the property fraudulently conveyed to the payment of the debts of the defendants, gives them such a joint interest as enables and entitles them to maintain such an action, though their claims or debts are separate and distinct. Doherty v. Holliday, 137 Ind. 282; Elliott v. Pontius, 136 Ind. 641, and cases there cited.
But it is contended that the plaintiffs do not all appear to be interested in all of the causes of action stated in the several paragraphs of the complaint.
It is settled law, as appellants’ learned counsel contend, that the complaint to be good must state a cause of action in favor of all of the plaintiffs. Berkshire v. Shultz, supra; Lipperd v. Edwards, 39 Ind. 165; Maple v. Beach, 43 Ind. 51; Parker v. Small, 58 Ind. 349; Harris v. Harris, 61 Ind. 117; Brumfield v. Drook, 101 Ind. 190; Brown, Exr., v. Critchell, 110 Ind. 31.
And it must further appear from the complaint that their interests are joint; that each plaintiff is interested
There were three conveyances alleged in the complaint to have heen fraudulently made; one by Wesley Armstrong and his wife, one hy Abner D. Armstrong and his wife, and one hy Alvin B. Armstrong.
It was alleged that plaintiff Moses F. Dunn had recovered a judgment against the defendants Wesley-Armstrong, Abner D. Armstrong, Alvin B. Armstrong, and Noah Armstrong for $1,321.08; that the plaintiff Nathan Jackson had recovered one judgment against Alvin and Abner Armstrong for $633.74, another for $925 against Abner Armstrong, and another for $430.35 against Wesley and the appellant Wallis Craig, whom the court found to he surety for the other defendants therein, and it is alleged that he paid off said judgment; and said Jackson recovered another judgment for $551.65 against Wesley S. Armstrong alone. The plaintiff Caroline M. Berry recovered a judgment for $231.29 against Noah and Wesley S. Armstrong.
The plaintiff Alfred F. Berry recovered a judgment for $475.95 against Noah and Wesley Armstrong, and he recovered another judgment for $432.60 against Alvin and Abner Armstrong.
These judgments, or the debts on which they were founded, were in existence when the alleged fraudulent conveyances were made. Bo that it will he seen that each one of the alleged judgment creditors had a judgment in which Wesley S. Armstrong was either one of the judgment defendants or the sole judgment defendant. Wallis Craig, who was surety in one of the judgments recovered hy Nathan Jackson, and who.had paid it off for the principals, Wesley and Abner, was interested in reaching the property of Wesley, fraudulently conveyed, and therefore had a right to join as he did.
' Therefore, all of the plaintiffs were interested jointly and alike in at least a part of the relief sought in the complaint.
It is settled that if the facts stated in the complaint entitle the plaintiffs to any relief, a demurrer for want of sufficient facts should be overruled. Bennett v. Preston, 17 Ind. 291; Culbertson v. Munson, 104 Ind. 451; Owen School Tp. v. Hay, 107 Ind. 351; Bloomfield R. R. Co. v. Van Slike, 107 Ind. 480.
There was therefore no error in overruling the demurrer for want of sufficient facts. The same rule applies to' the assignment of error here, that the complaint does not state facts sufficient.
The substance of the special finding is that the appellee Dunn, on August 29, 1892, commenced an action in the Lawrence Circuit .Court, the venue of which was changed on application of the defendants to the Monroe Circuit Court, and on October 26, 1892, he recovered a judgment (on his note executed October 1, 1889, by the defendants therein) against the defendants, Alvin Armstrong, Abner Armstrong, Noah Armstrong, and Wesley S. Armstrong, for $1,308 and costs, a transcript of which was filed in the clerk’s office of Lawrence county on October 29, 1892, and caused an execution to he issued on said judgment by the clerk of the Monroe Circuit Court on October 31, 1892, to the sheriff of Lawrence county, which came to the hands of said sheriff on November, 2, 1892, and that said sheriff, on November 18, 1892, returned said execution nulla bona; that the plaintiff Nathan Jackson duly recovered a judgment on November 23, 1892, in the Lawrence Circuit Court against Alvin and Abner Armstrong for $633.74, and on November 23, 1892, he
That at the date of said conveyances, to-wit, September 21, 1892, made for the fraudulent purposes aforesaid, the said defendants, Wesley S. Armstrong, Abner Armstrong, Alvin Armstrong and Noah Armstrong were all and each of them in the possession and owners of personal property, consisting of stock, horses, cattle, sheep, hogs, grain and hay of the value of $6,000.00, and at said date and after the commencement of the said action of said Moses F. Dunn, and that of said Nathan Jackson, and after the service of process therein, the said defendants, Abner, Wesley S., Alvin and Noah Armstrong sold and disposed of the same and applied no part of the proceeds of said property to the payment of the debts then long due and owing to these plaintiffs, leaving no prop
That at the time the several suits by the plaintiffs were begun against the defendants and the rendition of the several judgments thereon, and at the time of making the conveyances complained of in this suit, and long prior thereto the defendants, Wesley S., Abner, Alvin and Noah Armstrong were each of them greatly indebted and in failing circumstances, of which facts said defendants, Clementine and Jennette Armstrong had full knowledge.
The conclusions of law stated are, that the plaintiffs and each of them are entitled to the relief prayed for in their complaint, and are entitled to have the interests of Abner and Wesley S. Armstrong in the lands mentioned and described in the complaint, the description of which is again set out, subjected to the payment of the judgments mentioned in their complaint in the order of their priority; and to have said conveyances and each of them vacated and set aside as fraudulent. The only objection pointed out in appellants’ brief to these conclusions of law are the same as those urged to the sufficiency of the several pai’agraphs of the complaint.
Appellants’ counsel say that “A conclusion of law that the plaintiffs and each of them are entitled to have the interest of Abner Armstrong and Wesley S. Armstrong in the lands contained in the complaint, subjected to the payment of their judgments in the order
It is a sufficient answer to this objection to say that these conclusions of law only authorize the relief prayed for in the complaint. And the relief prayed for in the complaint was not that the lands of one of the alleged fraudulent grantors be subjected to the payment of a judgment or judgments against the other. The conclusion of .law .is that the lands found to he, fraudulently conveyed “be * * * subjected to the payment of the judgments mentioned in the complaint in the order of their priority.”
Under the circumstances this is a very awkward expression, hut it falls very far short of showing that the court intended to conclude as a matter of law, that lands fraudulently conveyed by one of the defendants should be subjected to the payment, of a judgment against another, or that such lands should he subjected to the payment of .a judgment to which the owner of the land was a stranger. The language “payment of the judgments mentioned in the complaint in the order of their priority,” indicates the direct contrary. It indicates the intention to subject the land to payment of judgments where there was priority of right or lien
The appellants’ counsel do not place their chief reliance on this point for a reversal. They principally rely on their motion for a new trial, contending that there was no evidence whatever to prove some of the essential facts found in the special finding. And in’ support of this contention they refer to and discuss the evidence at great length. But the evidence is not in the record. There is in the transcript what purports to be a bill of exceptions, incorporating the longhand manuscript of the evidence and its incidents, but it nowhere appears in the transcript that such bill of exceptions was ever filed in the clerk’s office. Under such circumstances it cannot be considered as a part of the record. Shulse v. McWilliams, 104 Ind. 512; Loy v. Loy, 90 Ind. 404; Stewart v. State, 113 Ind. 505; Downey v. Head, 138 Ind. 503; Board, etc., v. Huffman, Admr., 134 Ind. 1; Guirl v. Gillett, 124 Ind. 501; Shewalter v. Bergman, 132 Ind. 556.
There is no discussion of the alleged error in overruling the appellants’ motion for a venire de novo in appeL lants’ brief, and therefore the error, if any there was committed, in said ruling is waived by the appellants.
There being no available error assigned, the judgment if affirmed.