I dо not think a long opinion, in any case, certain evidence that the author very carefully examined the questions discussed, or that the conclusions arrived at are sound, and shall therefore write a short one in these cases.
Each complaint in these actions shows that the defendants Hunt and Julia Ann Chapman were partners; that the plaintiffs recovered judgments, in form, against both of them, upon partnership demands, by thе personal service of the summons only upon Hunt; that executions thereon, against property, were issued, and returned by the sheriff of the рroper county unsatisfied; and that Hunt and Julia Ann Chapman transferred partnership property of the value of more than $100 to the defendant George M. Chapman, which he still retains, with the intent to hinder, delay, and defraud the plaintiffs and other creditors.
The executions authorized the shеriff to seize and sell any goods that belonged to Hunt alone, or to him and Julia Ann Chapman as partners, but none that were the separatе property of the latter.
It is provided by subd. 1 of section 136 of the Code, that, if the action be against defendants jointly indebted upon contrаct, the plaintiff, when the summons has not been served on all the defendants, may proceed against those served, unless the court otherwise direct; and if he recover judgment, “it may be entered against all the defendants thus jointly indebted, so far only
The statutes authorizing judgment-creditors to maintain equitable actions, after they have failed to collect their judgments by executiоn, contain the following provisions, namely: “ Whenever an execution against the property of a defendant shall have been issued on a judgment at law, and shall have been returned unsatisfied in whole or in part, the party suing out such execution may file a bill in chancery against such defendant, and any other person, to compel the discovery of any property or thing in action belonging to the defendant, and оf any property, money, or thing in action due to him, or held in trust for him.” (2 Rev. Stat., 173, § 38.) The court shall have power, among other things, to decree satisfactiоn of the sum remaining due oh such judgment, out of any property, money, or things in action belonging to the defendants, whether the same were originally-liаble to be taken in execution at law or not. (Ib., § 39.)
The plaintiffs’judgments established their right to collect the moneys therein mentioned out of the jоint property of Hunt and Julia Ann .Chapman (Code of Pro., § 136; 2 Rev. Stat., 377, § 4); and I am unable to perceive any good reason why the plaintiffs are not entitled to have such judgments satisfied out of the partnership property that those defendants fraudulently transferred to George M. Chapman. (See 2 Rev. Stat., 137, § 1.) The executions issued on such judgments were as efficacious against the joint property of those defendants as they would have been if the judgments had bоund the latter personally. The plaintiffs have not only exhausted their remedy by execution upon such judgments, but also all remedy they could havе, by that process, against the partnership property of Hunt and Julia Ann Chapman, upon any judgment they could obtain against them in any legal action.
The statute only requires that “an execution against the property of a defendant” be returned unsatisfied, in whole or in part, to еntitle the plaintiff to maintain an equitable action, to reach choses in action belonging to th¿ defendant, or any property held in trust for him, or fraudulently transferred by him to a third person.
I would ask why the plaintiffs in these cases should be compelled to go back and recovеr judgments that would bind Julia Ann Chapman personally, before being allowed to invoke the equitable powers of the court to obtain the joint рroperty that she and her partner owned and fraudulently transferred to George M. Chapman? The judgments they now have show their legal right to seize and sell on execution any goods that Hunt and Julia Ann Chapman have as partners. And I am unable to see that the legal right of the plaintiffs to have their judgments satisfied by execution out of partnership property, has been greater at any time than their equitable right now is to have them satisfied out of like property. I cannot construe the statute authorizing judgment-creditors to maintain suits in equity after the return of executions unsatisfied, so as to deprive the plaintiffs of this equitable remedy. I think it would be unjust to do so; and that neither the language of the statute, nor any adjudged сase prior to the decision of Mr. Justice Allen in these, requires such a construction.
I think Mr. Justice Allen came to a wrong conclusion, when thеse cases were before him, upon the motions for the appointment of a receiver (13 Abbotts' Pr., 320), and that he erred, almost in the beginning of his оpinion, in saying: “ No judgment at law has been recovered against Julia Ann Chapman, and no execution has been issued against her upon any such judgment.” For the judgments are against her as a partner of Hunt, and executions against her, as such partner, were issued upon the judgments, and returnеd unsatisfied. Besides, his opinion does not show that he considered the fact, that one material object of the actions is to reach property that Julia Ann Chapman and Hunt had owned as partners and fraudulently transferred; and the cases are now stripped of the affidаvits which formed a part of them when they were before him.
I regret that my views and Mr. Justice Allen’s are in conflict, especially because of his great ability and learning. But I cannot concur in his opinion; and as it is not controlling, I shall
My conclusion is, that each complaint in these actions states facts sufficient to constitute an equitable cause of action against the defendаnts, and that, consequently, the demurrers to the complaints should be overruled with costs; but with leave to the defendants to answer on payment of the costs occasioned by the demurrers.