Monroe v. Reid

• Decision Date: 08 November 1895
• Citation: 64 N.W. 983,46 Neb. 316
• Parties: MONROE v. REID ET AL.
• Court: Nebraska Supreme Court

46 Neb. 316

64 N.W. 983

MONROE

v.REID ET AL.

Supreme Court of Nebraska.

Nov. 8, 1895.

Syllabus by the Court.

1. A case will not be considered in this court as both an appeal and a proceeding in error. A party must elect which remedy he will pursue, and, having filed a petition in error, must be presumed to have selected that remedy.

2. The amended petition in this case does not state a new and different cause of action from that set forth in the original petition, and objections to it on that ground were properly overruled by the trial court.

3. This action, as disclosed by the pleadings, was to set aside an alleged fraudulent transfer of property, and reach and appropriate to the payment of judgments against the debtor his moneys or property claimed to have been concealed, and was equitable in its nature, and triable by the court without the intervention of a jury.

4. The right to such an equitable action existed prior to the enactment of the statute providing for proceedings in aid of execution, and still exists. The statutory remedy did not supersede or destroy it.

5. The evidence examined, and held sufficient to support the findings of the trial court.

6. In trials of fact to the court without the intervention of a jury, if sufficient competent evidence is admitted to sustain the findings of the court, the case will not be reversed on the ground of the admission of immaterial and incompetent evidence.

7. The plea in abatement of another action pending in the same court between the same parties, regarding the same subject-matter, and in which the relief sought is practically the same, is a good defense to a second action, and the fact that one is an action at law, and the other in equity, is immaterial.

8. To constitute a good defense, however, it is necessary for the party seeking the abatementof the present action, by reason of the pendency of that already commenced, to plead and prove the connection of the former action to the same subject-matter, the relations of the parties therein to be the same as that in the case in which the plea is interposed, and that the relief sought is practically identical with that sought in the second action.

Error to and appeal from district court, Dodge county; Marshall, Judge.

Action by Reid, Murdock & Co. and others against E. H. Monroe and others. Plaintiffs had judgment, and defendant Monroe brings error, and appeals. Affirmed.

D. B. Carey and E. F. Gray, for plaintiff in error and appellant.

H. J. Whitmore, Fred W. Vaughan, and Montgomery, Charlton & Hall, for defendants in error and appellees.

HARRISON, J.

On the 1st day of April, A. D. 1892, the defendants in error filed a petition in the district court of Dodge county, in which was stated the business in which each was engaged during the occurrences and circumstances set forth in the pleading, connected with the elements of the cause of action. That Reid, Murdock & Co., during the time one Frank H. Scott was in business as stated, sold to him, on credit, quantities of goods and merchandise, and on December 18, 1891, obtained two judgments against him for the amounts of their bills,--one for $612,87, and one for $331.90,--upon which executions were thereafter issued, which on December 19, 1891, were returned unsatisfied, for want of property of the judgment debtor on which to levy. That proceedings in aid of execution were instituted, and E. H. Monroe was summoned to appear therein and answer. It was further recited that Raymond Bros. & Co. had an account against Frank H. Scott in the sum of $541.27; the Lincoln Packing & Provision Company, a balance due on account in the sum of $85.08; Z. T. Leftwich, an account, in amount, $516,--each of which was, by the party to whom it was due, prosecuted to judgment, execution issued, and returned unsatisfied, “No property found,” and, in proceedings in aid of execution, E. H. Monroe had been summoned to appear and answer. That on September 30, A. D. 1891, Frank H. Scott, one of defendants, was married to the daughter of E. H. Monroe, another of defendants. And it was further averred: “That on the 14th day of July, 1891, the said defendant Frank H. Scott, being then the owner of, and in possession of, a stock of goods, wares, merchandise, and fixtures, to the value of upwards of $8,000, and being fully able to pay all of his indebtedness, and being indebted to these plaintiffs as aforesaid, and to divers other persons in large amounts, did, for the purpose of hindering and delaying these plaintiffs and others of his creditors in the collection of their demands, and unlawfully, willfully, and fraudulently designing to cheat and defraud these plaintiffs in the collection of their demands, the said Frank H. Scott on said day sold and conveyed to his said father-in-law, the said defendant E. H. Monroe, the whole of said stock of goods, wares, merchandise, and fixtures, and, as plaintiffs are informed and believe, received therefor from the said E. H. Monroe the sum of $3,700 in money, in cash in hand, and three promissory notes of the said E. H. Monroe, payable to the order of said Frank H. Scott, and dated July 14, 1891, as follows: One note for $1,000, due in sixty days from date; one note for $1,300, due in ninety days; and one note for $1,000, due in four months from date,--each of said notes bearing interest from date at the rate of eight per cent. per annum. That shortly after the said sale and conveyance aforesaid the said Frank H. Scott, with fraudulent intent and purpose as aforesaid, and for the purpose of placing the said notes and money so received beyond the reach of these plaintiffs and others of his creditors, secretly departed from the city of Fremont, and went to the state of Colorado, taking with him the said notes and money. That he was soon followed to said state of Colorado by his father, the said defendant Pliney Page Scott, and that said notes were by the said Frank H. Scott placed in the possession and keeping of said Pliney Page Scott, in the city of Denver; and, as plaintiffs are informed and believe, the second and third of said notes are still in the possession of said Pliney Page Scott. Plaintiffs further say that they are informed that the said Pliney Page Scott now pretends to be the owner of said two notes, and refuses to return the same to the said Frank H. Scott. These plaintiffs aver that the said Pliney Page Scott knew at the time of said sale that the same was being made, and that the said Frank H. Scott was indebted as aforesaid, and that the creditors of said Frank H. Scott had not been paid. That said notes were delivered to him without consideration, and for the fraudulent purpose aforesaid. And that Pliney Page Scott has no right, title, or interest in or to said notes. Plaintiffs further say that, as they are informed, the defendant C. B. Morrow claims some interest in said notes, or, if he makes no such claim, that he claims possession thereof, but these plaintiffs allege that, if the said C. B. Morrow has said notes in his possession, they are held by him fraudulently, and without consideration on his part, and with knowledge on his part of the fraudulent intent as aforesaid of the defendant Frank H. Scott to cheat and defraud the plaintiffs and his other creditors by placing the notes beyond their reach. Plaintiffs further say that the defendant E. H. Monroe now refuses to pay the said notes to the said Frank H. Scott, or to pay the proceeds thereof to these plaintiffs into court, to be applied to the payment of plaintiffs' said judgment; that the said Frank H. Scott is wholly insolvent, and has no property liable to execution, to satisfy said judgments, and these plaintiffs are without adequate relief at law, and that the fund in the hands of the said E. H. Monroe, and due on the said notes, is all the property of said defendant Frank H. Scott, out of which plaintiffs' said judgments can be satisfied.” The prayer of the petition was as follows: “These plaintiffs therefore pray judgment against the said E. H. Monroe for the amount of their said judgments, interest, and costs. That the said Pliney Page Scott and C. B. Morrow be required to bring said notes into court, that the same may be canceled, and that the said E. H. Monroe be enjoined from paying the said notes to the said Frank H. Scott, or to Pliney Page Scott, or C. B. Morrow, or to any person whomsoever, until the further order of this court, and that the said Frank H. Scott be enjoined from disposing of the said notes, and from canceling or destroying the same. That said notes be decreed to be the property of said defendant Frank H. Scott, and the proceeds thereof liable to the payment of plaintiffs' said judgments, with interest and costs thereof. And plaintiffs further pray for such other and further relief as may be just and equitable.”

A temporary injunction was allowed, and the required bond filed and approved. E. H. Monroe filed an answer, in which the allegations of the petition in relation to defendants in error, the business in which they were respectively engaged, the existence of the indebtedness of Frank H. Scott to each, the judgments obtained, the issuance and return of the executions, and the institution of the proceedings in aid of execution, were admitted; and it was stated, in relation to the supplemental proceedings, that in all the cases the answers had been made, and the answering party discharged, except in that of Z. T. Leftwich, of which it was alleged there had been no hearing. The marriage of Scott and Monroe's daughter is stated to have occurred December 30, 1891, and not of date September 30, 1891, as pleaded in the petition. The purchase of the stock of goods by Monroe for the consideration of $7,000, the cash payment, and execution and delivery of notes for the balance, are admitted; but it is denied that the goods were worth more than the amount for which they were sold, and it is further denied that the sale was made to...