Pender v. Mallett

• Decision Date: 18 October 1898
• Citation: 31 S.E. 351,123 N.C. 57
• Parties: PENDER v. MALLETT et al.
• Court: North Carolina Supreme Court

31 S.E. 351

123 N.C. 57

PENDER v. MALLETT et al.

Supreme Court of North Carolina

October 18, 1898

Appeal from superior court, Edgecombe county; Brown, Judge.

Action by John R. Pender, receiver of John P. Mallett and another against John P. Mallett and others. From an order remanding the cause to the clerk, and directing him to proceed to execute a previous order for the examination of defendants before trial, defendants appeal. Affirmed.

The complaint, which was filed June 11, 1896, after alleging the appointment and qualification of plaintiff as receiver of the property of defendants John P. Mallett and C. B. Mehegan, on application of Julian M. Baker and Ida M. Adams, judgment creditors, and describing the property in controversy, in the possession of defendants S. Mallett (the wife of said John P Mallett and sister of said Mehegan) and the Edgecombe Homestead & Loan Association, averred the rendition of a judgment in favor of said Baker and Adams against said Mallett and Mehegan for $5,952.73, with 8 per cent. interest from February 1, 1894, and the fraudulent disposition of their property, and conversion thereof into cash, for the purpose of secreting the same from their creditors, and with intent to hinder, delay, and defraud said Baker and Adams and other creditors in the collection of their debts, and also the seizure of certain of such property on a warrant of attachment, and the condemnation thereof to the payment of said judgment in favor of said Baker and Adams. Said complaint also alleged that defendants John P. Mallett and Mehegan, being insolvent, and devising and intending to cheat and defraud said Baker and Adams in the enforcement of their said judgment, fraudulently turned over to defendant S Mallett money amounting to more than $1,800, and shipped to the addresses of fictitious persons, at divers places, goods of the value of about $1,000, and procured defendant S Mallett to be registered as a free trader, and established her in the mercantile business, by purchasing a stock of goods in her name, but with their own money; that defendant S. Mallett is also the holder of bank stock of the value of $400, which she purchased with money fraudulently turned over to her by defendant John P. Mallett; and that said John P Mallett is also the owner of 10 shares of stock in defendant Edgecombe Homestead & Loan Association, of the value of $820. In said complaint plaintiff prayed that he be adjudged the owner of the property therein described, and that he recover the possession thereof. Defendant S. Mallett demurred to said complaint, on the grounds (1) that it misjoins an alleged cause of action against demurrant with an alleged cause of action against the defendant association; (2) that it misjoins parties defendant who are not alleged to be liable on the same cause of action, viz. demurrant, who has no interest in the cause of action alleged against the defendant association, which, also, has no interest in the cause of action alleged against demurrant; and (3) that said complaint is both argumentative and evidentiary. Pending the demurrer and on September 28, 1897, the clerk issued an order for the examination of defendants John P. and S. Mallett, before him, on October 5, 1897, under Code, § 579 et seq., touching the matters in controversy in said action, which proceeding said defendants moved to quash for want of jurisdiction, there being no issues of fact in controversy, and the only matters at issue being questions of law on the demurrer. Their motion being overruled, they excepted and appealed; and at the October term, 1897, Bryan, J., presiding, said judgment of the clerk was overruled, and said proceeding ordered dismissed, to which order plaintiff excepted. On October 11, 1897, plaintiff, by permission of the court, filed a substituted complaint, containing substantially the same averments as the other, except that it omitted the alleged cause of action against the Edgecombe Homestead & Loan Association, and alleged, in addition, that defendant S. Mallett participated in the alleged scheme of her co-defendants to cheat and defraud their creditors, and that the money and property fraudulently appropriated by her amounted to at least $1,000, and praying that defendants be required to pay plaintiff $1,000 as the value of the property and money withdrawn by them from the reach of the judgment creditors, and that, for the payment thereof, defendant S. Mallett be declared a trustee of the stock of goods and bank stock therein described, and also for general relief. To this complaint defendant S. Mallett demurred on the several grounds specified in her demurrer to the first complaint, and on the additional grounds (1) that said complaint attempts to set up a different cause of action on the same alleged facts as stated in the first complaint; (2) that said complaint attempts to make parties defendant whose interest is antagonistic to that of demurrant; and (3) that no cause of action is alleged against demurrant, for that it appears from the complaint that she was a feme covert at the time of the alleged payments to her, and plaintiffs can maintain no action against her therefor because of her coverture, and that the alleged conspiracy in which she is alleged to have participated was with her husband, and must be presumed to have been under his coercion. On hearing said demurrer at the April term, 1898, before Brown, J., the same was overruled, it appearing that the defendant loan association had been eliminated from the action, and it was ordered that defendants John P. and S. Mallett have until May 20, 1898, to answer the substituted complaint. On motion of plaintiff, it was...