46 Neb. 316 | Neb. | 1895
On the 1st day of April, A. D. 1892, the defendants in error filed a petition in the district court of Dodge county, in which was stated the business in which each was en
“That on the 14th day of July, 1891, the said defendant Frank H. Scott, being then the owner of and in possession of a stock of goods, wares, merchandise, and fixtures to the value of upwards of $8,000, and being fully able to pay all of his indebtedness, and being indebted to these plaintiffs as aforesaid, and to divers other persons in large amounts, did, for the purpose of hindering and delaying these plaintiffs and others of his creditors in the collection of their demands, and unlawfully, willfully, and fraudulently designing to cheat and defraud these plaintiffs in the collection of their demands, the said Frank H. Scott on said day sold and conveyed to his said father-in-law, the said defendant*319 E. H. Monroe, the whole of said stock of goods, wares, merchandise, and fixtures, and, as plaintiffs are informed and believe, received therefor from the said E. H. Monroe the sum of $3,700 in money in cash in hand, and three promissory notes of the said E. H. Monroe payable to the order of said Frank H. Scott and dated July 14, 1891, as follows: One note for $1,000, due in sixty days from date; one note for $1,300, due in ninety days; and one note for $1,000, due in four months from date, each of said notes bearing interest from date at the rate of eight per cent per annum; that shortly after the said sale and conveyance aforesaid the said Frank H. Scott, with fraudulent intent and purpose as aforesaid, and for the purpose of placing the said notes and money so received beyond the reach of these plaintiffs and others of his creditors, secretly departed from the city of Fremont and went to the state of Colorado, taking with him the said notes and money; that he was soon followed to said state of Colorado by his father, the said defendant Pliny Page Scott, and that said notes were by the said Frank H. Scott placed in the possession and keeping of said Pliny Page Scott in the city of Denver, and, as plaintiffs are informed and believe, the second and third of said notes are still in the possession of said Pliny Page Scott.
“ Plaintiffs further say that they are informed that the said Pliny Page Scott now pretends to be the owner of said two notes and refuses to return the same to the said Frank H. Scott. These plaintiffs aver that the said Pliny Page Scott knew at the time of said sale that the same was being made, and that the said Frank H. Scott was indebted as aforesaid and that the creditors of said Frank H. Scott had not been paid, that said notes were delivered to him without consideration and for the fraudulent purpose aforesaid, and that Pliny Page Scott has no right, title, or interest in or to said notes.
“Plaintiffs further say that, as they are informed, the*320 defendant G. B. Morrow claims some interest in said notes, or, if lie makes no such claim, that he claims possession thereof, but these plaintiffs allege that if the said C. B. Morrow has said notes in his possession they are held by him fraudulently and without consideration on his part, and with knowledge on his part of the fraudulent intent as aforesaid of the defendant Prank H. Scott to cheat and defraud the plaintiffs and his other creditors by placing the notes beyond their reach.
“Plaintiffs further say that the defendant E. H. Monroe now refuses to pay the said notes to the said Frank H. Scott, or to pay the proceeds thereof to these plaintiffs into court to be applied to the payment of plaintiffs’ said judgment; that the said Frank H. Scott is wholly insolvent and has no property liable to execution to satisfy said judgments, and these plaintiffs are without adequate relief at law, and that the fund in the hands of the said E. H. Monroe, and due on the said notes, is all the property of said defendant Frank H. Scott out of which plaintiffs’ said judgments can be satisfied.” *
The prayer of the petition was as follows:
“These plaintiffs therefore pray judgment against the said E. H. Monroe for the amount of their said judgments, interest, and costs; that the said Pliny Page Scott and C. B. Morrow be required to bring said notes into court that the same may be canceled, and that the said E. H. Monroe be enjoined from paying the said notes to the said Frank H. Scott, or to Pliny Page Scott, or C. B. Morrow, or to any person whomsoever until the further order of this court, and that the said Frank H. Scott be enjoined from disposing of the said notes and from canceling or destroying the same; that said notes be decreed to be the property of said defendant Frank H. Scott, and the proceeds thereof liable to the payment of plaintiffs’ said judgments, with interest and costs thereof; and plaintiffs further pray for such other and further relief as may be just and equitable.v
“This answering defendant alleged that his purchase price of said stock of goods of Frank H. Scott was $7,000, and on said purchase, about July 14, 1891, he paid said. Scott $3,700 in cash, and delivered him his three negotiable promissory notes, one for $1,000, due in sixty days from date, and one for $1,300, due in ninety days from that date, and one for $1,000, due in four months from date, each bearing interest at eight per cent from date; that said sixty-day note this answering defendant paid to said Scott shortly before due and took the same up; that the other two*322 of said notes this answering defendant, on March 28,1892, paid to C. B. Morrow, who was then, and from before either of them became due had been, the owner and holder of them for value, and upon said payments said answering defendant took up said two notes, and this answering defendant owes nothing on said purchase, and did not owe anything on said purchase at the commencement of this action. This answering defendant denies each and every allegation in said petition not above admitted.”
The reply to this answer was in effect a general denial of all new matter stated in the answer. The defendants in error made application to file an amended petition, which was objected to by plaintiff in error on the following grounds:
“1. Said proposed amended petition sets up a new and different cause of action from that set up in the original petition.
“2. Said proposed amendment sets up matter irrelevant to the matter set up in the original petition and in no way an amendment of the original petition, and sets up matter not triable except at law to a jury.
“3. Said proposed amended petition is an abandonment of the original cause of action and an attempt to set up a new cause of action triable to a jury at law in place of the equitable cause of action originally set up.
“4. Said proposed amended petition is filled with irrelevant matter, redundant matter, surplusage, and its allegations are indefinite and uncertain, and several different causes of action are not separately stated and numbered.”
The objections were overruled and the defendants in error allowed to file the amended petition. A motion was then filed for plaintiff in error to strike the amendment from the files, which was overruled. The allegations of the amended petition in regard to the accounts of defendants in error against Frank H. Scott, the obtaining judgments, issuance, and return of executions, proceedings in
“These plaintiffs further allege that on the 14th day of July, 1891, the said Frank H. Scott was the owner of and in possession of a stock of goods, wares, merchandise, and fixtures of the value of upwards of $8,000, and was solvent and fully able to pay all his indebtedness in full.
“12. Plaintiffs further allege that on or about the said 14th day of July, 1891, the said defendants Frank IT. Scott, E. H. Monroe, and Pliny Page Scott entered into an unlawful and fraudulent conspiracy and combination to defraud these plaintiffs and others of the creditors of the said Frank H. Scott and to hinder and delay them in the collection of their demands against the said Frank PI. Scott.
“13. That in pursuance of the said unlawful and fraudulent conspiracy and combination against the rights of these plaintiffs the said Frank H. Scott did, on said 14th day of July, 1891, falsely pretend to sell and transfer his-said stock of goods, wares, merchandise, and fixtures to-the said E. H. Monroe, and the said E. H. Monroe did; falsely pretend to purchase the same, and did take immediate possession of the same, and has since sold and disposed of the same and received and still holds the proceeds-of the said sale.
“14. That it is claimed by said defendants that said pretended sale was for the sum of $7,000 and that $3,700' of said consideration was paid by said E. H. Monroe-to said Scott in cash, and that $3,300 of said pretended consideration was in three promissory notes of said Monroe,, as follows: One for $1,000, due in sixty days from date; one for $1,300, due in ninety days from date; and one for-$1,000, due in one hundred and twenty days from date,, all bearing interest from date at the rate of eight per cent, per annum.
*324 “ 15. Plaintiffs further aver that in pursuance of said unlawful and fraudulent conspiracy and combination, and to carry the same into effect, the said Eranlc H. Scott did, shortly after the said pretended sale, secretly depart from the said city of Fremont, and, as plaintiffs have since learned, went to the state of Colorado and took up his residence with the defendant Morrow; that shortly thereafter the said defendant Pliny Page Scott also secretly left the ■city of Fremont, and, as plaintiffs have since learned, also ■took up his residence with defendant Morrow in the city of Denver.
“16. That it is now claimed by the said defendants that the said notes so alleged to have been executed by the said Monroe were by the said Frank H. Scott taken to the city of Denver and there delivered to the defendant Pliny Page Scott, who it is alleged thereupon sold and delivered two of the said notes to the said defendant Morrow, who now claims to be the owner and holder thereof. These plaintiffs aver that if any such notes were executed and delivered by the defendant Monroe to the defendant Frank H. Scott that the same were executed and delivered for the purpose of cheating and defrauding these plaintiffs and others in the collection of their demands, and that if said notes were taken to Denver and delivered to the said Morrow, that the same was done for the purpose of carrying out said fraudulent intent; that said notes were transferred for no consideration and were taken by said Morrow with full knowledge of said fraudulent intent and for the purpose of aiding and abetting the perpetration of the said fraud; that the said Morrow was, at the time of the alleged purchase of the said notes by him, employed as a railroad conductor on the Burlington & Missouri railroad, was a man of no means and wholly unable to purchase the said notes and pay the consideration claimed to have been paid therefor; that the said Pliny Page Scott was a man of no means, said notes were placed in his possession without considera*325 tion,and solely for the purpose of carrying out said fraudulent conspiracy and combination, of all of which the said Pliny Page Scott was fully informed.
“ 17. Plaintiffs further allege that the defendant E. PL Monroe now refuses to pay the said notes given, or alleged to have been given, to the said Frank H. Scott, or to apply the proceeds of said notes to the payment of these plaintiffs’ claims or to pay said money into court for such purpose; that the said Frank PL Scott is wholly insolvent, and has no property liable to execution tó satisfy said judgments, and these plaintiffs are without adequate relief at law, and that the fund in the hands of the said E. PL Monroe, alleged to be due on said notes, is all the property of said Frank PL Scott out of which these plaintiffs’ said judgments can be satisfied.”
The prayer for relief did not differ materially from that of the original petition. The answer of Monroe to the-amended petition contained admissions of such facts as had been alleged in the original petition and admitted by the answer thereto, and they need not be restated here in detail. It pleaded affirmatively the purchase of the stock of goods by Monroe for a consideration of $7,000, the payment of a portion thereof in cash and the execution of the notes for the amount of the balance, that such purchase and sale were in good faith, and denied, either generally or specifically, all allegations of the amended petition in reference to conspiracy, fraud, intention to hinder, delay, or defraud creditors as connected with the sale of the goods, the money paid therefor, the notes or their delivery from Frank H. Scott to the father, Pliny Page Scott, and by him to Morrow, or lack of consideration for any or all of them, and states affirmatively his payment of one of the notes to Frank H. Scott, and on March 28, 1892, of the other two to C. B. Morrow, and further as follows:
*325 “And for a second ground of defense and answer to the amended petition, defendant E. PL Monroe, answering for
*326 “For a third ground of defense and answer to the amended petition the said E. H. Monroe, for himself only, states that the garnishee proceedings and proceedings in aid of execution commenced against him by the said several plaintiffs, as alleged in said amended petition, have been fully heard and determined in the courts where the same were pending, and each and all of said proceedings and garnishments have been duly dismissed, and this answering defendant duly discharged therefrom and in the premises, and the matters embraced in this action have been fully determined iu said garnishee and aid of execution proceedings on the merits and this answering defendant duly discharged in the premises, and therefore the plaintiff ought not to be permitted to maintain this action.”
When the case was called for trial a jury trial was demanded for plaintiff in error.' This was refused and an exception noted. The result of the trial was a finding and judgment against Monroe, and he has brought the case to this court for review. A motion for new trial was filed in the district court and a petition in error filed with the record in this court. The case was one which could have been -appealed, and counsel for plaintiff in error, judging from a statement in the brief filed, view the case as here by appeal and by proceedings in error, and that it can be so considered. “This course is not permissible. A party must
The question to which we will next direct our attention is, did the trial court err in overruling the objections to the amended petition, or did it state a new and different cause of action than was pleaded in the original petition? We do not think so. In the original petition the .sale of the stock of goods was alleged to be fraudulent as to creditors, and it was further set forth that Frank H. Scott, Pliny Page Scott, his father, and C. B. Morrow, a brother-in-law, were seeking to secrete and dispose of the money or other proceeds of the sale, that it could not be reached by the creditors of Frank H. Scott or appropriated to the payment of his debts. In the amended petition the same elements were included in the cause of action, the statements in the pleading concerning them being' somewhat amplified, and it was further alleged that the apparent transfer of the goods to Monroe, and his taking possession of them, and the pretended sale to him, were but acts in furtherance of the main design, the defrauding of the creditors of Frank H. Scott, in which Monroe was actively cooperating. This did not change the cause of action nor was a new one stated. The matters complained of in each petition were the alleged simulated sale and transfer of the stock of goods and tlfe consequent fraud upon the creditors.
Another question is, did the trial court err in refusing the demand of plaintiff in error for a jury trial? The action, as disclosed by the petition and issues presented by the pleadings at the time this point was raised and decided, was one to set aside an alleged fraudulent transfer or sale, and to reach and appropriate to the payment of the judgments against the debtor his moneys or property which it was claimed was by certain devices concealed, so that it could not be made available for such purpose by the ordi
It is urged that the defendants in error could have obtained full relief under the proceedings in aid of execution. The record discloses that the supplementary proceedings were prosecuted so far as to obtain the answer of Monroe,, after which the court discharged him, and it is claimed that the defendants in error, in further pursuance of the statutory remedy in aid of execution, might have instituted an action at law against Monroe and litigated the questions, involved in the case at bar. The right to the equitable action to determine the controversies existed prior to the enactment of the statute which provided the supplemental proceedings, and still exists. The statutory remedy did not supersede it or destroy it. We do not think the proceedings in aid of execution were intended to be substituted for actions in the nature of creditors’ bills, while they may be made to serve in the main the saíne purpose, they often furnish an incomplete and imperfect remedy, and where, on the facts, such an action is proper, the one in the nature of a creditor’s bill will be entertained. (Oldenheirner v. Tressel,. 43 N. W. Rep. [Dak.], 941; Dudes v. Hood, 29 Kan., 49.)
It is claimed that the evidence was insufficient to sustain the finding and judgment. We have carefully examined and considered all the testimony, and will not in this opinion enter into, or discuss it, but our conclusion is that it was sufficient to support the conclusions and judgment of the trial court, and hence they will not be disturbed. (Bond v. Dolby, 17 Neb., 491; Burlingim v. Warner, 39 Neb., 497.)
In regard to the assignments of error in relation to the admission of certain testimony, it is argued by counsel on this point “that the evidence having been admitted over objection, the presumption is that the court used and relied on it in making its finding, and for this error the judgment ought to be reversed. To hold otherwise would be to place
The plaintiff in error set up as a defense to the amended petition and introduced testimony to show that one of defendants in error, Reid, Murdock & Co., had another action pending in the trial court; that in actions commenced there by Reid, Murdock &• Co. attachments had been issued and levied on a large portion of the stock of goods claimed by
Affirmed.