Slusher v. Simpkinson & Co.

101 Ky. 594 | Ky. Ct. App. | 1897

JUDGE HAZELRIGG

'deltvered the opinion oe the court.

In this action brought to adjudge a salo and transfer of certain property to be within the statute of 1856 denouncing preferential acts the petition averred that the debtor hnd ■sold, conveyed or otherwise disposed of his property, with the fraudulent intent to cheat, hinder and delay Ms creditors; that he had, in contemplation of insolvency, sold and transferred his properly, describing it, to Ms co-defendant, Slusher, for the pretended consideration of $3,000; that he had done so in contemplation of insolvency and to defraud his other creditors, and to prefer Slusher, who was a creditor at the time; that the transfer was made with the intention of preferring Slusher in fraud of his other creditors. After an unsuccessful demurrer to the pefcition an explicit denial of its averments followed, but before the cause came to trial and more than six months after the alleged preferential sale, another creditor filed his pleading in the action, seeking to amend the original petition and have its language conform more nearly to that of the statute, it being conceded that the original had nowhere charged that the sale was made with the “design” to prefer one or more creditors, “to the exclusion in whole or in part of others.”

Over the objection of the defendants the court permitted this pleading to be filed, and other issues were joined thereon and proof heard. Judgment resulted in accordance with the prayer of the interpleading creditor, the original creditor having dismissed his action so far as he was concerned after the second creditor had appeared in the case. This judgment must be approved. The proof leaves no room whatever to doubt that the sale was within the inhibition of the statute. The contention, however, is that the original petition is defective, and it is evident that pleading does not use the language of the statute. We think, however, its meaning is clear and conveys the idea of a design to prefer the creditor, Slusher, to the exclusion of other creditors, although the words “design” and “exclusion” are not used. The facts required by the statute are substantially stated. If the second creditor, therefore, had filed no> pleading, relying on the pleadings as he found them, and had merely filed his claim before the commissioner, he could still have prosecuted the1 action to a favorable judgment, notwithstanding the original plaintiff had quit the. suit. We think, moreover, that as the first creditor had obtained a. footing in court, and might have amended his petition at any time before trial, if defective, the second creditor also had the right, while the action was pending, to make the petition good, as the action at its inception inured to the benefit of all creditors.

Judgment affirmed.

The court delivered the following response to a petition for rehearing December 9, 1897:

The sole question discussed iby counsel representing appellant on the original hearing was one with respect to the pleadings. It is now urged that the court below ought not to have directed appellant to pay to the receiver the sum representing the extent to which appellant had been preferred, but have ordered appellant to account for the goods purchased of the debtor, Howard. The facts are that appellant bought of Howard a ‘Stock of goods, of the value of $3,000, paying him in effect 'the sum of $1,500 in cash, and applying the balance to the payment of a debt of the insolvent debtor, on which appellant was bound as his surety. This was a preference under the statute to the extent of the sum of $1,500, and the court properly ordered the preferred creditor, the appellant, to surrender it or pay it over to the court’s receiver for the benefit of all the creditors. Appellant is one of them, and is, of course, entitled to his ■share of the fund to be distributed. And if the creditors have in some way already got the goods, or some part of them, as suggested by counsel, this may be adjusted on the final distribution of the fund as the creditors can not have both the goods and their purchase price in the hands of the appellant.

Petition overruled.