Rahikka v. Gronstrom, 1379.

• Citation: 200 A. 973
• Decision Date: 09 July 1938
• Docket Number: No. 1379.,1379.
• Parties: RAHIKKA v. GRONSTROM et al.
• Court: United States State Supreme Court of Rhode Island

200 A. 973

RAHIKKA

v. GRONSTROM et al.

No. 1379.

Supreme Court of Rhode Island.

July 9, 1938.

Appeal from Superior Court, Washington County; Mortimer A. Sullivan, Judge.

Suit by Peter Rahikka against John Gronstrom and others to set aside deed, cancel lease, have receiver appointed, and have proceeds from sale of land distributed. From a decree for complainant, respondents appealed.

Appeal denied and dismissed, decree affirmed, and cause remanded for further proceedings. Clarence E. Roche, of Westerly, for complainant. Adolph Gorman and Edward W. Morris, both of Providence, for respondents.

CAPOTOSTO, Justice.

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This is a bill in equity brought by Peter Rahikka against the respondents John Gronstrom and Fannie Gronstrom, husband and wife, and the respondent Harold Prince, to set aside a deed from the Gronstroms to Prince as a conveyance without legal consideration and in fraud of creditors. The bill also prays for the cancellation of a lease from Prince to the Gronstroms of the premises conveyed by the deed, and for the appointment of a receiver, with power to sell the real estate and apply the surplus remaining after paying a certain mortgage, in satisfaction of a judgment which the complainant holds against the Gronstroms. The answer of the three respondents denied that the deed from the Gronstroms to Prince was without legal consideration or that it was in fraud of creditors.

The cause was heard in the superior court on bill, answer and proof. The trial justice, in a rescript subsequently filed by him, granted the prayer of the bill and a decree was duly entered in accordance with his decision. The respondents have appealed to this court, claiming that the decision of the trial justice is against the law and the evidence and the weight thereof.

It appears in evidence that on July 13, 1932, the complainant brought an action in assumpsit against the Gronstroms and attached the property described in the bill now before us in that action; that on January 4, 1935, he recovered judgment for $1,532.06, and that execution subsequently issued. The record in the instant case is incomplete as to what happened to the execution. The sworn bill states that an execution was issued on February 25, 1935, and that it was returned on June 25, 1936, "wholly unsatisfied."

The testimony of the assistant clerk of the superior court for the county in which the case was tried merely shows that the execution, which he said was filed with the papers in the case, was returned "unsatisfied." During the trial counsel agreed that the execution was levied on April 19, 1935, which is the date of the execution mentioned in a certain deed from the Gronstroms to the respondent Prince in the instant case, to which we will presently refer.

We are at a loss to understand why the execution was not put in evidence or else read into the record in its entirety. This court is entitled to a record that is reasonably complete, and proper practice requires that this be done in all cases. However, the instant case is in equity and we are reluctant to remand such a case to the superior court without final disposition, unless absolutely necessary. After careful consideration of the record as it stands, the admissions of counsel in that record, and their attitude in the hearing before us, our conclusion is that the complainant lost the benefit of his attachment either because he failed to levy the execution within six months and the attachment was thereby discharged under the provisions of general laws 1923, chapter 353, sec. 19, or else the levy of the execution was abortive because of noncompliance with the provisions of G.L.1923, chap. 355, secs. 11, 13.

But even though the complainant lost the benefit of his attachment, his judgment remained in force, unaffected by anything done under the execution. See East Greenwich Inst. for Savings v. Allen, 22 R.I. 337, 340, 47 A. 885. In the circumstances, the complainant stands in the position of an unsecured judgment creditor, claiming that the Gronstroms fraudulently conveyed their property to Prince, who was not a bona fide purchaser, to defeat his rights as a judgment creditor.

It appears in evidence that, after the complainant had recovered his judgment, on January 4, 1935, the Gronstroms brought an action in assumpsit against the...