Fine v. Moomjian

• Decision Date: 26 January 1932
• Court: Connecticut Supreme Court
• Parties: FINE v. MOOMJIAN et al.

158 A. 241

114 Conn. 226

FINE v. MOOMJIAN et al.

Supreme Court of Errors of Connecticut.

January 26, 1932

Appeal from Superior Court, New Haven County; John Richards Booth and Carl Foster, Judges.

Action by Eva Fine, executrix, against John B. Moomjian and others to recover on a mortgage assumption agreement and set aside alleged fraudulent conveyances. From a judgment for plaintiff after a demurrer to the complaint was overruled and the issues tried to the court, defendants appeal.

No error.

Privilege growing from relationship of attorney and client does not apply where attorney acts merely as scrivener in drafting instruments.

Charles S. Hamilton, of New Haven, for appellants.

George W. Crawford and Bernard Greenberg, both of New Haven, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

MALTBIE, C.J.

The complaint alleged that the plaintiff, since deceased and now represented by his executrix, and the defendant John B Moomjian made an exchange of properties, as a result of which the defendant assumed certain mortgages upon the property he received; that when a few months later the time drew near at which payment would become due upon the mortgages, the defendant John B. Moomjian, to avoid these payments and to defeat the claim which the plaintiff would have against him upon his satisfying them, transferred certain real estate described in the complaint to his wife, the defendant Mary H. Moomjian, and a store he owned to his nephew, the defendant Edward K. Moomjian; that both these defendants knew of the fraudulent character of the transfer; and that thereafter the payment did become due, the mortgages were foreclosed, and deficiency judgments were rendered against the plaintiff which she has satisfied, but the amounts of which the defendant John B. Moomjian refused to repay. The complaint claimed damages, that the defendant Mary H. Moomjian deliver up for cancellation the deeds received by her and execute reconveyances of the property granted in them, and that the defendant Edward K. Moomjian deliver up for cancellation the instruments by which the store was transferred to him; and it also claimed forfeitures under General Statutes, § 6133 of the Revision of 1918, then in force, and other equitable relief. The defendants demurred to the complaint because of misjoinder of causes of action and to the prayers for relief seeking the forfeitures under the statute.

The plaintiff had the right to seek in one action a judgment awarding her damages against the debtor John B. Moomjian and setting aside the transfers claimed to have been fraudulently made against those who accepted them with knowledge of their fraudulent character. Nowsky v. Siedlecki, 83 Conn. 109, 112, 75 A. 135; Finance Corporation of New England v. Scard, 100 Conn. 712, 713, 124 A. 715. The object of the action was the recovery by the plaintiff of the debt due her from the defendant John B. Moomjian, and the effect of the transactions with the other defendants was to impose upon them a duty with respect to the payment of that debt. Under the allegations of the complaint it might fairly be proven that the conveyances to the wife and the transfer of the store to the nephew were parts of one transaction. It was proper to allege in one complaint the facts which would justify relief against the defendants. Lewisohn v. Stoddard, 78 Conn. 575, 590, 63 A. 621; Mathewson v. Wakelee, 83 Conn. 75, 75 A. 93. The demurrer to the complaint was properly overruled. The overruling of the demurrer to the prayers for relief which sought to impose the statutory forfeiture, whether right or wrong, is now of no consequence as the judgment was in no way based upon them.

The finding as made is ample to sustain the judgment. The defendants do not seek to have any portion of it stricken out, but do seek to have a number of paragraphs from their draft-finding added. These paragraphs include several distinct matters. A separate assignment of error was made as to the failure of the trial court to add each paragraph, but in all these assignments reference is made to the same exhibit of evidence attached. That exhibit consists of one hundred and eighty-three printed pages, much of which is irrelevant to any of the requested additions. If we regard the defendants as attempting to proceed under the first method for securing the corrections of a finding established by section 8 of the Rules for Appellate Procedure, they have so violated the letter and spirit of the rules that we would be under no obligation to consider these assignments at all. The transcript of evidence printed begins, however, with a statement that it is all the evidence in the case and it is so certified at the end, although an examination of it shows this not to be so. It may be that the omitted portions were agreed by the parties or directed by the trial court not to be printed as not material to the corrections sought; and we have therefore approached the matter upon the basis that the defendants were proceeding under the second alternative provided in the rule. Even so we cannot hold the trial court in error in failing to add the facts stated in the paragraphs of the draft-finding. Certain of these paragraphs are not prepared in accordance with our rule; for instance, the last contains a long transcript of the evidence of the defendant Mary H. Moomjian and concludes with certain statements as to the argument of plaintiff counsel, the purpose apparently being to claim that, while the plaintiff called her as a witness, in the argument a general attack was made upon her credibility; but the evidence, if it was to be used for this purpose, should have been reduced to a brief narrative account; and the whole attempt to raise the question must fail because the court has made no finding as to the subject-matter of the argument of plaintiff's counsel and the record...