Armstrong v. Dunn
| Decision Date | 11 October 1895 |
| Docket Number | 17,012 |
| Citation | 41 N.E. 540,143 Ind. 433 |
| Parties | Armstrong et al. v. Dunn et al |
| Court | Indiana Supreme Court |
Petition for Rehearing Overruled January 24, 1896.
From the Lawrence Circuit Court.
The judgment is affirmed.
J. E Boruff, N. Crooke and M. Owen, for appellants.
Dunn & Alexander and G. O. Isominger, for appellees.
The appellees, as separate judgment creditors of several of the appellants, sued them to set aside several conveyances of real estate situate in Lawrence county, made by some of the appellants to others of said appellants, as fraudulent against the creditors of the grantors. The circuit court overruled separate demurrers to each of the three paragraphs of the complaint.
A trial of the issues formed upon the complaint resulted in a special finding of the facts by the court, on which it stated conclusions of law in favor of the appellees, on which they had judgment over appellants' exceptions to the conclusions of law and their motion for a new trial.
Error is assigned on the action of the court in overruling the demurrer to the complaint and the several paragraphs thereof, in overruling the motion of the appellants for a venire de novo, in overruling appellants' motion for a new trial, and that neither paragraph of the complaint states facts sufficient to constitute a cause of action.
The complaint was in three paragraphs, but as to the only points of objection urged against each they are exactly alike.
The grounds of objection stated in the demurrers were: (1) That neither paragraph stated facts sufficient to constitute a cause of action; (2) that several causes of action had been improperly joined in the complaint; (3) that there was a misjoinder of parties plaintiff, and (4) a misjoinder of parties defendant.
As to the last two causes of demurrer specified, it is sufficient to say that there is no such cause of demurrer known to the civil code. Burns R. S. 1894, section 342 (R. S. 1881 section 339); Redelsheimer v. Miller, 107 Ind. 485, 8 N.E. 447.
As to the ground of misjoinder of causes, it is provided by statute that no judgment shall ever be reversed for any error in sustaining or overruling a demurrer for misjoinder of causes of action. Burns R. S. 1894, section 354 (R. S. 1881, section 351). Rennick v. Chandler, 59 Ind. 354; Coan v. Grimes, 63 Ind. 21.
Therefore we do not consider the question whether there was a misjoinder of causes or not. That leaves for our consideration only the first ground of objection specified in the demurrer, namely, want of sufficient facts to constitute a cause of action.
Under this objection it is urged that neither paragraph of the complaint stated facts sufficient to constitute a cause of action, for the reason that neither of them shows a cause of action in favor of all the plaintiffs and against all of the defendants.
A failure to state a cause of action against some of the defendants in a complaint, while it states a cause of action against others, would not make the complaint bad as to all nor be ground for sustaining a demurrer thereto for want of sufficient facts by all the defendants. In such a case the defect can only be taken advantage of by a separate demurrer by the defendants, against whom no cause of action is stated in the complaint. Berkshire v. Shultz, 25 Ind. 523 (527).
The demurrers were by all the defendants naming them and then read: "Demurs jointly, as well as separately and severally, to the first, second and third paragraphs of the complaint, and to each of them separately, and for cause says that neither of said paragraphs state facts sufficient to constitute a cause of action."
In Carver v. Carver, 97 Ind. 497, the demurrer on page 500 was as follows: "The defendants separately and severally demur to the first and second paragraphs of the plaintiff's complaint, and for cause of demurrer say that neither of said paragraphs state facts sufficient to constitute a cause of action against them."
This court there said of that demurrer that: To the same effect are Hanover School Tp. v. Gant, 125 Ind. 557, at page 558, 25 N.E. 872; Axtel v. Chase, 83 Ind. 546.
The assignment of error that the complaint does not state facts sufficient to constitute a cause of action is also joint by all the appellants, defendants below. A joint assignment of error must be good as to all who join therein, or it is good as to none. Orton v. Tilden, 110 Ind. 131, 10 N.E. 936; Robbins v. Magee, 96 Ind. 174; Hinkle v. Shelley, 100 Ind. 88; Quick v. Brenner, 101 Ind. 230; Boyd v. Anderson, 102 Ind. 217, 1 N.E. 724; Tucker v. Conrad, 103 Ind. 349, 2 N.E. 803; Hochstedler v. Hochstedler, 108 Ind. 506, 9 N.E. 467; Walker v. Hill, 111 Ind. 223, 12 N.E. 387; Sparklin v. Wardens, etc., Church, 119 Ind. 535, 22 N.E. 8; Arbuckle v. Swim, 123 Ind. 208, 24 N.E. 105.
Therefore, the question as to whether the complaint is bad as to part only of the defendants for want of sufficient facts, is not presented by the record. But whether each paragraph thereof states facts sufficient as to all the defendants, is presented.
Numerous judgments are alleged to have been recovered by the five plaintiffs against different ones of the defendants.
A fraudulent conveyance of real estate is alleged to have been made by the defendant Wesley Armstrong and his wife to certain other defendants named; another by Abner D. Armstrong and wife to certain of the defendants, and another by Alvin B. Armstrong to the defendants Edward C. Stanard, Jeremiah Stanard and Frank O. Stanard, who were then defendants in the cause. Their demurrer for misjoinder of causes having been sustained, they were taken out of the case and the alleged fraudulent conveyance to them; and Abner D. Armstrong and Jennette, his wife, have dismissed the appeal as to themselves, and no question raised by them in the assignment of errors or by the briefs will be further noticed.
It is first contended that each one of these alleged fraudulent conveyances constituted a separate and distinct cause of action. That would not make the facts insufficient to constitute a cause of action. The remedy was a motion to separate the causes of action into separate paragraphs, as all three of the alleged fraudulent conveyances were embraced in each paragraph of the complaint. We need not and do not decide whether they constituted separate causes of action or not, as that question is not presented by the record.
It is contended that neither paragraph of the complaint is good, because it does not appear therefrom that all the plaintiffs were jointly interested in the cause of action. Separate creditors may maintain a joint action to set aside a fraudulent conveyance made by their common debtor, and to subject the property thus conveyed to the satisfaction of their several debts.
The joint interest they have in obtaining relief from the fraud and subjecting the property fraudulently conveyed to the payment of the debts of the defendants, gives them such a joint interest as enables and entitles them to maintain such an action, though their claims or debts are separate and distinct. Doherty v. Holliday, 137 Ind. 282, 32 N.E. 315; Elliott v. Pontius, 136 Ind. 641, 35 N.E. 562, and cases there cited.
But it is contended that the plaintiffs do not all appear to be interested in all of the causes of action stated in the several paragraphs of the complaint.
It is settled law, as appellants' learned counsel contend, that the complaint to be good must state a cause of action in favor of all of the plaintiffs. Berkshire v. Shultz, supra; Lipperd v. Edwards, 39 Ind. 165; Maple v. Beach, 43 Ind. 51; Parker v. Small, 58 Ind. 349; Harris v. Harris, 61 Ind. 117; Brumfield v. Drook, 101 Ind. 190; Brown, Exr., v. Critchell, 110 Ind. 31, 7 N.E. 888.
And it must further appear from the complaint that their interests are joint; that each plaintiff is interested in the relief asked by the others, or some part of it. Elliott v. Pontius, supra, and cases there cited.
There were three conveyances alleged in the complaint to have been fraudulently made; one by Wesley Armstrong and his wife, one by Abner D. Armstrong and his wife, and one by Alvin B. Armstrong.
It was alleged that plaintiff Moses F. Dunn had recovered a judgment against the defendants Wesley Armstrong, Abner D. Armstrong, Alvin B. Armstrong, and Noah Armstrong for $ 1,321.08; that the plaintiff Nathan Jackson had recovered one judgment against Alvin and Abner Armstrong for $ 633.74, another for $ 925 against Abner Armstrong, and another for $ 430.35 against Wesley and the appellant Wallis Craig, whom the court found to be surety for the other defendants therein, and it is alleged that he paid off said judgment; and said Jackson recovered another judgment for $ 551.65 against Wesley S. Armstrong alone. The plaintiff Caroline M. Berry recovered a judgment for $ 231.29 against Noah and Wesley S. Armstrong.
The plaintiff Alfred F. Berry recovered a judgment for $ 475.95 against Noah and Wesley Armstrong, and he recovered another judgment for $ 432.60 against Alvin and Abner Armstrong.
These judgments, or the debts on which they were founded, were in existence when the alleged fraudulent conveyances were made. So that it will be seen that each one of the alleged judgment creditors had a judgment in which Wesley S. Armstrong was either one of the judgment defendants or the sole judgment defendant...
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