42 S.C. 352 | S.C. | 1894
The opinion of the court was delivered by
The plaintiff in each of the two above stated actions, after execution issued in each had been returned altogether unsatisfied by the sheriff, applied to his honor, Jijdge Norton, for an order in each action requiring the defendant to appear before W. A. Lee, Esq., as special referee, to answer concerning his property. These orders were passed by Judge Norton. The defendant and other witnesses appeared before such special referee and gave their testimony. The special referee made his report of such testimony, which came on to be heard before Judge Wallace at the fall term of the Court of Common Pleas for Abbeville County, and on the 21st October, 1893, the Circuit Judge filed the following order: “The above proceedings came before me at my chambers at Abbeville Court House, S. G., on testimony taken before W. A. Lee, Esq., and the same being certified to me; and after notice to the defendant that the plaintiffs would ask for an order directing the said Jesse A. McAllister to pay the amount of the judgments above named, and appointing a receiver of the property of the said Jesse A.
From this order the plaintiffs respectively have appealed upon the following grounds: 1. Because it was error to hold that the plaintiffs had an adequate remedy at law, when it appeared from the proceedings and evidence before the judge that the plaintiffs’ executions had been returned nulla bona by the sheriff, and that the defendant had transferred his property and refused to turn over the proceeds to his creditors. 2. Because of error in not holding that the plaintiffs had the right to treat the transfer as valid, and compel the defendant to account for the proceeds of sale. 3. Because the evidence clearly showed that the defendant had made the transfer of his laud to defraud his creditors, and it was error not to appoint a receiver of his property, and allow the receiver to take such steps as might be necessary to subject the property of the defendant to the payment of his debts. 4. Because the evidence showed that the defendant had in his possession property, to wit: the note and mortgage, which was applicable to the payment of his debts, and it was error not to order the defendant to turn over said property to his creditors for that purpose. 5. Because the defendant himself swore that he had been paid several hundred dollars in cash a short time before the proceedings were instituted and refused to say what he had done with the money, and it was error in the judge not to order him to pay the judgments of the plaintiffs. 6. Because it was error in the judge to order the costs to be paid by the plaintiffs, and to order them taxed by the clerk of court, without stating to whom they were tobe paid, or fixing the amount and character of said costs. 7. Because the plaintiffs were asserting a purely legal remedy, and it was error in the judge to dismiss the proceedings on the ground that the plaintiffs were attempting to assert an equity.
These proceedings are statutory, and are contained in sections 312 to 322, inclusive, of our Code of Civil Procedure. The first thing to be done by the judgment creditor, as set out in section 312, is by affidavit to prove to the satisfaction of the court, or a judge thereof, that the judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment. When this is done, the Circuit Judge is required to issue an order commanding the judgment debtor to appear at a specified time and place to answer concerning the same. In these two causes all this was done. When the defendant, the judgment debtor, gave his testimony, he admitted that he had in his possession as his property an unsatisfied note, and mortgage of land securing the note, for the sum of $650, and that these papers were executed early in February, 1893, his examination taking place after June 28th, 1893, and before October, 1893. It is true, the debtor claimed that all but $25 had been paid to
It is the judgment of this court, that the order appealed from in each of the two cases, here heard together for convenience and by consent, be reversed, except as to so much of Judge Wallace’s order refusing to require Jesse A. McAllister to pay each of the two judgments in question here from money in the hands of the said McAllister, but this reservation not to affect the rights of appellants, respectively, to require him fully to disclose his knowledge as to the whereabouts or application of any moneys in his hands at the date of his examination before W. A. Lee, Esq., as special referee, if appellants should so elect; and it is further ordered, that these two causes be remanded to the Circuit Court for such further proceedings as may be necessary.