Murray Drug Co v. Harris

• Decision Date: 28 June 1907
• Citation: Murray Drug Co v. Harris, 57 S.E. 1109, 77 S.C. 410 (S.C. 1907)
• Parties: MURRAY DRUG CO. et al. v. HARRIS et al.
• Court: South Carolina Supreme Court

57 S.E. 1109

77 S.C. 410

MURRAY DRUG CO. et al.

v.HARRIS et al.

Supreme Court of South Carolina.

June 28, 1907.

On Rehearing, July 23, 1907.

1. Fraudulent Conveyances—Merchandise in Bulk—Action by Creditors.

In an action under Act 1906 (25 St. at Large, p. 1), relating to the sale of mercantile stocks in bulk, and requiring the making of a full schedule of the vendor's creditors, unless it appear that one contributed to the capital stock, or has participated in the profits of the firm, or that there was a mutual agency between him and another in the conduct of the business, it was not mandatory under Code Civ. Proc. 1902, § 140, requiring all persons united in interest to be made parties, that he should be made a party defendant in an action by the creditors against the purchaser and the seller to recover the goods at their value, though it was alleged that he was interested in the sale.

2. Parties—Proper Parties.

Whether one interested in the result of a suit should be made a party defendant is in the discretion of the trial judge, under Code Civ. Proc. 1902, § 139, providing that such persons may be made parties.

Appeal from Common Pleas Circuit Court of Sumter County; Gary, Judge.

Action by the Murray Drug Company and another against W. E. Harris and W. W. Abbott. Rule against E. K. Gibson requiring him to show cause why he should not be made a party defendant. From refusal of rule, W. W. Abbott appeals. Affirmed.

Nelson & Nelson and D. W. Robinson, for appellant.

Frank G. Tompkins, for respondent.

POPE, C. J. In April, 1906, W. E. Harris, one of the defendants herein, conveyed to W. W. Abbott, a codefendant, his entire stock of goods, consisting principally of cigars, tobacco, etc., for the sum of $2,859.64. This action was brought under Act 1906 (25 St. at Large, p. 1), which sets out the manner in which mercantile stocks may be transferred in bulk, by the plaintiffs, Murray Drug Company and Cliff Weil Cigar Company, creditors of W. E. Harris, in their own behalf and for the benefit of such other creditors as would come in and share the expenses of the suit. The complaint alleges that Harris violated the act in that he did not make a full schedule of his creditors; that Abbott and Harris did not join in giving 10 days' written or printed notice of the proposed sale; that the sale was fraudulent and void. The plaintiffs prayed that the court enjoin Abbott from disposing of the property conveyed, and that personal judgment be issued against him for the amount of the goods already disposed of. Answering the complaint, Abbott denied that the sale was fraudulent or in violation of the said act, and further alleged that in April, 1906, he was approached by one E. K. Gibson with a view to selling the stock of goods of W. E. Harris; that Gibson was present at the sale and knew all of the surrounding circumstances; that W. E. Harris, in consideration of a previous loan of $1,900, in the presence of all parties to the transaction, indorsed two of the notes given in payment for the stock of goods to E. K. Gibson; and, finally, that Gibson was a partner in business with W. E. Harris and should be made a party defendant to the action. On July 6, 1906, his honor, Judge J. C. Klugh, upon motion of Abbott's attorneys, issued a rule, requiring Gibson to show cause why he should not be made a party to the action. On account of press of business Judge Klugh, with the consent of the attorneys, afterwards changed the order and made it returnable before Judge Ernest Gary on July 24, 1906. Upon hearing the return Judge Gary filed an order dismissing the motion, and it is from this order that defendant Abbott appeals.

The Code of Civil Procedure of 1902, § 140, provides that "of the parties to an action,...