90 Ind. 450 | Ind. | 1883
— The appellee brought this action against Robert Morey, Gardner Ball and Seneca Ball. The complaint consisted of two paragraphs. The first averred, in substance,,
The second paragraph of the complaint averred the same facts except that it was averred that the money was borrowed by the firm of Robert Morey & Co., and that the firm of Morey & Ball and the appellee executed said note as co-sureties for said first named firm. This complaint was filed on the 14th day of December, 1878, and on the 20th day of the same month the appellee filed a supplemental complaint.
This complaint averred, in substance, that the firm of Robert Morey & Co. was formed on the 1st day of September, 1876, for the purpose of doing a commission business in grain in the city of Lafayette and elsewhere, and at once entered upon the business of buying, selling and shipping grain to distant markets, in which business it is still engaged; that at the time said partnership was formed said Robert Morey and Gardner Ball were doing the same kind of business under the firm name of “ Morey & Ball,” at a different place in the city of Lafayette, and that they continued said business until the 1st of March, 1878, when they quit business and proceeded to wind up the affairs of said firm; that the firm of Robert Morey & Co. had not more than $3,000 with which to do business, and that the appellee, who is the father of Seneca
This complaint was verified, and as soon as filed Eobert Morey and Gardner Ball appeared and filed a demurrer to the supplemental complaint on the ground that the same did not state facts sufficient to constitute a cause of action against them. The court, without passing upon the demurrer, issued an order restraining Eobert Morey and Gardner Ball from disposing of any of the property of said firm, or of any property belonging to them individually, or of any belonging to them as members of the firm of Morey & Ball, until the further order of the court, and the cause was set for hearing on the 26th day of December following.
The next day Eobert Morey and Gardner Ball moved the court to modify its order so as not to embrace the property owned by them individually or the property belonging to the firm of Morey & Ball. The various motions made to thus modify the order were overruled and exceptions were saved. Thereupon the court overruled the demurrer to .the supplemental complaint, after which the same was amended by averring that the several acts charged to have been done were done with the intent to defraud the creditors of the firm of Eobert Morey & Co., and the several acts threatened were about to be done with like intent, all of which was duly verified.
The appellants thereupon 'filed an answer of two paragraphs on behalf of Eobert. Morey & Co. The first was a general denial, and the second was a set-off. Thereafter they moved the court to dissolve the injunction generally, which was overruled. They then moved the court to dissolve the injunction as to the property of the firm of Morey & Ball, and
The parties to this record disagree as to the character of the order made by the lower court. The appellants insist that it was a temporary injunction, and contend that it was ■error to issue it while a demurrer was pending to- the complaint. The appellee, on the other hand, contends that it was a restraining order, and that it was proper to issue it without ■first disposing of the demurrer. This order was the only ■one ever made in the case, and as the appellee insists that it is still in force, and as the appellants appeal from it as an injunction, we think we must thus regard it. Thus regarded, we think there was no available error in issuing it without first diposing of the demurrer filed. The demurrer in this ■case was filed to the supplemental complaint. Our statute ¡authorizes such pleading to show facts which occurred after the former complaint was filed. 2 R. S. 1876, p. 83, section 102.
Such supplemental complaint does not supersede the original, but both stand and constitute the complaint.
As such pleading only constitutes a part of the complaint, '¡a demurrer to it is unknown to our practice, and the court was authorized to disregard it. This is what was done, and in this no error was committed.
The appellants do not claim that the court erred in overruling the demurrer, but in granting the injunction before ■the demurrer was passed upon. If the demurrer had been •directed to the entire complaint, it would have presented no •question concerning the injunction, as the complaint was unquestionably good for the money due. If good for any purpose, it was sufficient to withstand the demurrer. Searle v. Whipperman, 79 Ind. 424.
Granting the injunction without passing upon the demurrer, had it been thus directed, would, at least, have been ir
It is next insisted that the court erred in granting and in refusing to dissolve the injunction, on the ground that a gen-, eral creditor, before judgment, cannot enjoin his debtor from disposing of his property. This is the rule in the absence of a statute. High Injunctions, secs. 131, 326.
Our statute, however, provides, among other things, that “ where it appears in the complaint, at the commencement of the action, or during the pendency thereof, by affidavit that the defendant threatens, or is about to remove, or dispose of his property, with intent to defraud his creditors, a' temporary injunction may be granted to restrain the removal or disposition of his property." 2 E. S. 1876, p. 93, section 137.
Under this statute, a creditor before judgment may restrain his debtor from disposing of his property. In such case, it must appear that such debtor threatens or is about to dispose of his property with intent to defraud his creditors. This, fact, we think, sufficiently appears. It is true that the mere act of selling the property of Eobert Morey & Co., and placing the proceeds op deposit in the name of Morey & Ball, in payment of money claimed to be due that firm, does no injury to. the creditors of the other firm; nor does the act of Eobert Morey and Gardner Ball in retaining the proceeds of such property operate as a fraud upon such creditors, for the reason that the money is still in the hands of the debtors. So long as the appellees’ debtors have the money, it is immaterial to the creditors whether they claim it as the money of Morey & Ball or Eobert Morey & Co. Both firms were, and each member was, liable for the money due the appellee. If it were averred that Morey & Ball had creditors, or that either member of the firm had creditors, a different question would arise, but as this is not averred it must be assumed that there are no-creditors of either class, and hence the money thus held either
The motion to modify the order so’ as not to prohibit the appellants from transferring the' property of Morey & Ball, or from transferring their individual property, should have been sustained. Nothing was averred in the complaint justifying any such order, and the mere fact that the firm of Morey & Ball, or the members of the firm, may not have any property, as is suggested by the appellees, did 'not authorize the injunction, nor will the suggestion justify its continuance. The firm of Morey & Ball, and each member of the firm, was liable for the appellee’s claim, but this fact alone did not au-. •thorize the order; it was necessary that it should also appear that the members of this firm were threatening or were about to dispose of this property fraudulently.
A receiver was appointed, but as no appeal was taken from the order no question' arises upon it.
This disposes of the material questions in the record, and as the court erred in refusing to modify the order in the particulars above named, the order in that respect should be reversed.
Per Curiam:. — It is therefore ordered, upon the foregoing opinion, that the order in this ease be modified so far as not to embrace the firm property of Morey & Ball and the individual property of each member of said firm, at the appellees’ costs, and that in all other respects it be affirmed.