M. Ferst's Sons & Co. v. Powers

41 S.E. 974 | S.C. | 1902

June 12, 1902. The opinion of the Court was delivered by The appeal herein is from an order sustaining a demurrer to the complaint. A copy of the complaint will be seen by reference to the report of this case on former appeal, in 58 S.C. 398. The defendants demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action, for the following reasons: "Because the plaintiffs, M. Ferst's Sons Co. and J.J. J.E. Maddox, two separate and distinct mercantile firms, each holding a separate account against the defendant, Powers, said firms having no community of interest whatever, undertake in the same action to recover judgments against the said defendant, which proceeding the defendants submit is a misjoinder of parties plaintiff, and states no cause of action at all."

The opinion on the former appeal unquestionably shows that the complaint sets forth both a legal and an equitable cause of action, though they are commingled and not separately stated. While the causes of action are thus commingled, the complaint is not subject to demurrer, if either of the causes of action, separately stated, would not be demurrable on the ground interposed. Conceding that the demurrer could properly have been sustained to the legal cause of action, if it had been separately stated, we proceed to consider whether it could also have been sustained as to the equitable cause of action, if it had been separately stated. This question is conclusively disposed of by the case of Bomar v. Means, 37 S.C. 520, in which the Court uses this language: "Four several creditors united as plaintiffs to bring an action in equity to set aside certain mortgages, bills of sale, and a judgment confessed, alleged to be fraudulent and void as to creditors. It is true, that such a proceeding, called a creditor's bill, is usually brought in the name of one creditor for himself and such others as will come in and contribute to the expenses. But I do not understand that where several judgment creditors go on the record as plaintiff, it is a misjoinder of plaintiffs of which the defendant debtor, or those who claim under him, have any right to complain. The judgment creditors do not thereby make themselves partners with the other creditors, or claim that they have a joint interest in the cause of action, but that, as creditors, they are separate and distinct, having an interest in common to set aside fraudulent conveyances of their common debtor which stand in the way of their being paid according to their respective priorities." This principle is fully sustained in 5 Enc. of Pl. Pr., pages 536-538, and notes to said pages. There is an elaborate discussion of this subject by Chancellor Johnston, in Johnston v. S.W.R.R. Bank, 3 Strob. Eq., 334-339.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed.