Stephens v. Whitehead

• Decision Date: 31 October 1885
• Citation: 75 Ga. 294
• Parties: Stephens et al. vs. Whitehead et al.
• Court: Georgia Supreme Court

75 Ga. 294

Stephens et al. vs. Whitehead et al.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

Debtor and Creditor. Attachment. Garnishment. Liens. Equity. Misjoinder. Multifariousness. Parties. Before Judge Stewart. Rockdale Superior Court. February Term, 1885.

Reported in the decision.

J. N. Glenn, for plaintiffs in error.

A. C. McCalla; A. C. Perry, for defendants.

Hall. Justice.

The bill in equity makes this case: The complainants, as merchants, doing a separate business, sold, at different times, and on different terms of credit, goods to Smith & Farmer. Each of them, in his dealings with this firm, acted independently of the other After there had been an extension of time to this firm as to the two debts in question, they failed and made an assignment of their partnership effects for the benefit of all their creditors alike. This assignment the creditors rejected, and it was cancelled; the goods it conveyed were re-delivered by the assignees to the assignors, who disposed of them for cash as rapidly as possible. It is alleged that these sales weremade at a ruinous undervalue, both in the day-time and in the night, and the goods purchased were clandestinely removed by each of the purchasers, and converted into money, so as to place them beyond the reach of complainants and other creditors of Smith & Farmer, and that the transactions were entered into between Smith & Farmer and these purchasers to defraud complainants and others of their creditors. After these goods had been sold and removed and converted into cash, complainants instituted suits upon their respective claims, obtained judgments, and issued executions thereon, which had been returned nulla bona. Thereupon they joined and filed this bill against several persons residing in several different counties, who had made these separate purchases from their common debtors, for the purpose of recovering from each of these defendants the value of the goods alleged to have been thus fraudulently converted by him. The bill does not show or state any combination or concert of action between the defendants in advancement of the fraudulent design of Smith & Farmer towards their creditors; on the contrary, it is manifest that each of the defendants, in the purchases he made, acted independently of his co-defendants; then, as between themselves, there was no conspiracy, but there was such a conspiracy between each one of them and Smith & Farmer, who are not made parties to this bill.

The defendants filed a demurrer to this bill upon several grounds, but it is necessary to notice only three of them, viz.:

(1.) That there is a misjoinder of both plaintiffs and defendants, as well as causes of action; and that in each of these respects, the bill is multifarious.

(2.) That Smith & Farmer are necessary parties, and hey are not made defendants to the bill; therefore, it can not be maintained against defendants, etc.

(3) That there is no equity in the bill, and that if complainants have any remedy at all, it is at common law. which affords them as ample relief as could a court of equity.

This demurrer was sustained by the court upon the first and third grounds, and the complainants excepted to the decree, and sued out their writ of error.

1. We will consider the last ground first. We agree with defendants' counsel, that the remedy of these parties, if any they had, was under the statute giving them an attachment against debtors who sell or conceal property liable to the payment of their debts for the purpose of avoiding the payment of the same, or who threaten or prepare so to do, or shall make a fraudulent lien thereon. When the attachment issues, it proceeds as to levy, garnishment, etc., as do other attachments. Code, §§3207, 3297 (a), 3300. If the funds in the hands of the defendants could be reached in equity, they could also, as a general rule, be reached by process of garnishment. There is nothing peculiar in this case rendering a resort to equity necessary, as that the goods which went into the hands of defendants were those procured by their vendors from complainants by false representations, etc. That Smith & Farmer, when they obtained this credit, made fraudulent statements as to their solvency and the state of their business is distinctly charged, but it is not definitely alleged that the goods obtained by them under these false representations were those sold to the defendants, or either of them, or what part of such goods each of the defendants got, or which of them purchased and converted any of the same. The complainants had no right to any of this stock of goods; they had acquired no lien thereon, and were not in a situation to...