291 P. 558 | Cal. Ct. App. | 1920
The appeal is by plaintiff from a judgment in favor of defendant Denehy Mercantile Company after a demurrer to a second amended complaint had been sustained and the plaintiff had declined to amend. The sole question on this appeal is therefore the sufficiency of said amended complaint. Appellant has made and presented a synopsis of said complaint, which we substantially adopt in the following statement: On April 30, 1918, M. Hotchkiss Sons, retail merchants of Lake City, Modoc County, California, while indebted to plaintiff's assignors in the sum of $1,197.91, sold and delivered their stock in trade of the value of $3,000 to the defendants herein. "That neither the said M. Hotchkiss Sons or said defendants, D. S. Denehy Mercantile Company, Incorporated, and John H. Hornback, or either, or any of them, either at least seven days before the consummation of said sale or transfer or assignment or ever or at all, recorded, or caused to be *43
recorded, nor was there at any time recorded on behalf of either of said persons or at all, in the office of the County Recorder of the County of Modoc, State aforesaid, or any other place, a notice of said intended sale, transfer or assignment, nor was there ever recorded a notice or any notice, as provided in Section
On August 5, 1918, plaintiff brought suit on his assignors' claims, and on September 5, 1918, procured judgment thereon against Hotchkiss Sons, and caused a writ of execution to be levied by way of garnishment on defendants in this action and by way of direct levy on all other known property of said Hotchkiss Sons in Modoc County, California. Defendants denied having any property belonging to Hotchkiss Sons, and asserted themselves to be the owners of said stock in trade, and refused to turn over the same to the sheriff for application to satisfy the execution. Under the execution upon the other property the net receipts of the sheriff amounted only to $192.46. With this exception the writ was returned nulla bona, and as a result the plaintiff has an unsatisfied judgment for over $1,000 against Hotchkiss Sons, who were and are insolvent and have no other property out of which the judgment can be realized. After alleging in conclusion that the transfer of the stock in trade was made to the defendants by Hotchkiss Sons with intent to defraud the latter's creditors, plaintiff prays judgment against the defendants for the delivery to him of the stock in trade or sufficient thereof to satisfy his judgment against Hotchkiss Sons, or in case delivery cannot be made, for judgment against the defendants and each of them for the amount of his judgment against Hotchkiss Sons, with interest, etc.
The defendant Denehy Mercantile Company interposed a demurrer upon the grounds: (a) That the complaint did not state a cause of action; (b) that several causes were improperly united; (c) that they were not separately stated, *44 and (d) that the complaint was ambiguous, unintelligible, and uncertain.
The action is clearly in the nature of a "creditor's bill," and we can see no valid objection to the complaint.
[1] We are satisfied that only one cause of action is attempted to be stated. The alleged facts show plaintiff to be a judgment creditor, who has attempted unavailingly by legal methods to satisfy his judgment, and then invokes the equitable power of the court to subject to his claim the property of the judgment debtor which has been fraudulently conveyed to another party. The allegations in reference to the garnishment and proceedings under execution have no legal relation to a separate cause of action, but are simply indicative of the efforts made by plaintiff to avoid the necessity for resorting to the equitable action. Indeed, it has been held in this state that such attempt must be made before the creditor is in a position to attack the fraudulent conveyance. In Bickerstaff v.Doub,
As to the general demurrer, we may say that no material facts seem to be omitted from the complaint. [2] The general rule is, no doubt, that, since the statute provides for proceedings supplementary to execution (secs. 717 to 720, Code Civ. Proc.), resort must be had to such proceedings before a creditors' bill will lie. But if said statutory proceedings do not afford an adequate remedy, as where there has been a void transfer of personal property by the debtor and the transferee claims the title, said supplementary proceedings do not supersede the remedy by action. (Rapp v. Whittier,
[3] However, it is due respondent's counsel to say that they do not specifically make this objection. The only reason they advance for their position as to the insufficiency of the complaint is found in this statement: "If it is an action against defendant, as the vendee of M. Hotchkiss Sons, for purchasing the stock of goods without giving the notice required by section
The fact is alleged as follows: "That at all times herein mentioned and since the 30th of April, 1918, said defendant D. S. Deheny Mercantile Company, Incorporated, has had sole, exclusive, continuous, and unqualified possession of all the goods, wares, and merchandise belonging to said M. Hotchkiss
Sons, and now is the sole and exclusive and unqualified possessor of said stock of merchandise and the whole thereof."[4] Moreover, if the company had transferred the property, the fraudulent vendee would still be liable for the value of the property to the creditors of the vendor. (Swinford v. Rogers,
We are satisfied that the ruling of the trial court was erroneous and the judgment is, therefore, reversed, with directions to overrule the demurrer.
Nicol, P. J., pro tem., and Hart, J., concurred.