Fenton v. Morgan

• Decision Date: 03 December 1896
• Parties: FENTON ET AL. v. MORGAN ET AL.
• Court: Washington Supreme Court

47 P. 214

16 Wash. 30

FENTON ET AL. v. MORGAN ET AL.

Supreme Court of Washington

December 3, 1896

Appeal from superior court, Spokane county; James Z. Moore, Judge.

Creditors' suit by James E. Fenton and Daniel M. Henley, partners as Fenton & Henley, against John M. Morgan and others. Judgment for defendants, and plaintiffs appeal. Reversed.

W. A Lewis, for appellants.

Jones Voorhees & Stephens, for respondents.

GORDON J.

This action was brought by the appellants for the purpose of setting aside a certain deed executed March 4, 1895, by the respondents John M. Morgan and Maryetta E. Morgan (husband and wife) to their co-respondent, Dyer, as being in fraud of creditors of the grantors. The complaint in the action alleges the recovery by appellants (plaintiffs) of judgment against respondent John M. Morgan for $1,036 on June 19, 1895, the issuance of an execution and its return nulla bona, and other allegations usual in such cases, including the insolvency of respondent John M. Morgan at the time when said conveyance was executed. The answer admits the recovery of judgment by appellants, the execution and delivery of the deed in question, and denies each and every other allegation contained in the complaint. Respondents have moved for a dismissal of the appeal "because the amount involved in this action does not equal or exceed the sum of $200," and for further grounds of dismissal set forth certain proceedings taken by appellants subsequent to their appeal herein, namely, the issuance of an execution, and sale of property of the respondents, part of which was included in the deed of conveyance which is assailed by the plaintiffs in this action, as the result of which sale appellants' judgment has been satisfied, with the exception, only, of a balance of $109.65. This action, however, was not for the recovery of money, but was equitable in its nature, and the fact that the amount remaining unpaid upon appellants' judgment is less than $200 affords no reason for dismissing the appeal; nor do we think that the subsequent proceedings taken by appellants are inconsistent with the remedy which they seek by the appeal, or that anything is presented "going to the merits of the further prosecution of the appeal"; and the motion is denied.

The findings and conclusions of the trial court were as follows:

"First. That on the 14th day of June, 1895, the above-named plaintiffs recovered a judgment against defendant John M Morgan for one thousand (1,000) dollars. Second. That an execution issued upon said judgment, and was returned nulla bona, before the commencement of this action. Third. That

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