126 Mich. 262 | Mich. | 1901
Hazle & Clark, copartners, carried on a shoe business in Ovid. The complainants sold them goods, and were severally their creditors. Their bill of complaint, filed on or about September 18, 1898, at which time a temporary injunction was allowed, states their
Apparently the only question relied upon under the demurrer relates to the jurisdiction of the court to enter tain such a suit. Complainants contend: First, that the demurrer is not a general demurrer, and that the order is not appealable; second, that the bill states a case entitling them to the relief prayed.
Our statute (1 Comp. Laws 1897, § 549) is anomalous in permitting an appeal from an order overruling a demurrer. Usually appeals are permitted only after final judgment or decree. This is an exception, however, but the right is limited to cases where the order is upon a general demurrer. The demurrer should, in our opinion, be treated as a good general demurrer. All of the special reasons contained in it (in accordance with Chancery Rule No. 9), except one, go to the equity of the bill. In the case of Turck v. Soule, 55 Mich. 128 (20 N. W. 822),
It has been intimated that, at the time the bill was filed, only $33 of complainants’ claims were due. There was no'impediment to proceedings by attachment for both due and undue claims, if, as alleged in the bill, the transfers were fraudulent. Moreover, if it was also true that the .goods were procured through fraud, replevin or trover would lie. The only'reason given for not resorting to a remedy at law is that the complainants wished to proceed under the bankruptcy act at a later date, and that the proceedings at law would be futile if the court of bankruptcy should take jurisdiction. We do not discover that it is alleged that there was any creditor except complainants who could begin such proceedings, and, if there were such, there is nothing to imply that he would do so; and, if it were otherwise, it is not clear that the complainants would be injured thereby, or by having taken steps under our State laws to secure payment of their claims.
It is contended that the case does not fall within the rule that a judgment must be procured, execution issued, and returned unsatisfied, before equity can be resorted to for the purpose of reaching assets fraudulently conveyed. Some cases are cited relaxing to a greater or less degree the rule referred to; but it has been adhered to with strictness in this State. See the late case of Jenks v. Horton, 114 Mich. 48 (72 N. W. 20).
It is apparent that the object of this bill was merely to preserve an estate until a time should come when it could be administered under the new law, which, at the time the bill was filed, did not authorize the federal courts to interfere. It is claimed that, as these courts were power
We are of the opinion that the order overruling the demurrer should be reversed, with costs, and one entered sustaining the demurrer, with costs. It will be so certified.