Elliott v. Pontius
| Decision Date | 15 February 1894 |
| Docket Number | 15,499 |
| Citation | 36 N.E. 421,136 Ind. 641 |
| Parties | Elliott et al. v. Pontius et al |
| Court | Indiana Supreme Court |
Original Opinion of November 28, 1893, Reported at: 136 Ind 641.
Appellants present a single ground on which they ask a rehearing, or rather, a modification of the opinion and mandate. They insist that there ought to be a reversal because the evidence clearly proved, without conflict, that the appellees were indebted to the appellants in the several sums stated in the complaint, and to that extent they ask a reversal, so as to allow them to recover their several claims against appellants. And that, of course, must be by several and separate judgments in favor of the appellants, against the appellees.
The complaint was in the nature of a creditor's bill. Numerous creditors of the firm of Pontius & McElwee brought the action against that firm and others, mortgagees, grantees and the assignee to whom the firm had transferred their firm property for the benefit of their creditors. The object of the suit was to set aside the mortgage and the conveyance as a fraud on the creditors and get an order of the court that the assignee should take possession and control of the fraudulently conveyed and mortgaged property as a part of the assets of the insolvent firm.
The complaint did not proceed upon the theory of an ordinary creditor's bill; it did not proceed upon the theory of an ordinary suit by creditors to recover a judgment against their debtor and to subject certain property fraudulently conveyed and mortgaged, freed from such conveyance and mortgage, to sale to satisfy such judgments; but it proceeded upon the theory of avoiding the conveyance and mortgage as a fraud on the creditors, and securing an order on the assignee by the court that he take charge and make sale of said property for the benefit of creditors.
Consistently with this theory, there was no prayer in the complaint for judgment in favor of the complaining creditors for their debts against their debtors, either severally or collectively. It is true the want of a specific prayer for judgment would not preclude the granting of such relief, especially where, as here, there was a prayer for all proper relief. But we mention the absence of such specific prayer as pointing to the probable theory on which the pleader intended to proceed in the complaint. In such a case, it has been held by this court, we think properly, that the prayer may be looked to in determining such theory. Monnett v. Turpie, 133 Ind. 424, 132 Ind. 482, 32 N.E. 328.
But even if the complaint should be treated as proceeding upon the theory of an ordinary suit by creditors to obtain judgments for their several and separate debts and claims, and in the one and same complaint to set aside a fraudulent conveyance and a fraudulent mortgage, we must bear in mind that it was that part of the complaint that assailed the conveyance and mortgage as a fraud on creditors that gave the several creditors a standing in court as joint plaintiffs. Their debts being several and separate, they had no right to join in one common complaint to recover nothing more than a judgment, be that judgment joint or a separate judgment for each debt separately.
In Field v. Holzman, 93 Ind. 205, it was said: ."
The statute, however, provides that * * " causes of action so joined must affect all the parties to the action," etc. 1 Burns' Rev. 1894, section 279, subd. 7; 1 Burns' Rev. 1894, section 281; Bowen v. State, ex rel., 121 Ind. 235, 23 N.E. 75.
The finding of the trial court was that that part of the complaint that gave the appellants a standing in court as joint plaintiffs, by which we mean the right to join their several separate debts as a cause of action in one complaint, was found to be untrue; that is, the court found that there was no fraudulent conveyance and no fraudulent mortgage; that is, the finding of facts and conclusions of law, together, establish that proposition.
The petition for a rehearing does not question the correctness of this conclusion; but contends that the finding of the court below ought to have followed the evidence, which established, without any conflict, the several debts due the several plaintiffs joining in the complaint.
We held in the original opinion, that the court ought to have done so, and that it was error not to do so, but that it was a harmless error. It ought to have done so, because it was a part of the facts alleged in the complaint. But it was harmless, because the conclusions of law made it impossible to obtain the relief sought in the complaint in setting aside the conveyance and mortgage. But appellants contend that such failure harmed them, because it is tantamount to a finding that their debts did not exist, and makes a bar to a recovery of them in the future.
That is a mistake. The conclusion reached in the original opinion, and of which they do not complain, eliminates entirely from their complaint, should the case be reversed and taken back, the feature seeking to set aside the alleged fraudulent conveyance and mortgage, and would leave them with nothing but their joint complaint seeking to recover on separate and several causes of action in favor of different and several parties, in which no two of them have any interest whatever, being causes of action that do not "affect all the parties to the action," contrary to the statute already quoted.
It is true there was no demurrer for misjoinder of causes of action, for the good reason that there was no misjoinder so long as that part of the complaint seeking to avoid the alleged fraudulent conveyance and mortgage remained intact. But now,...
To continue reading
Request your trial