Goldberg v. . Cohen

Avery, J.: This is the appeal of the other plaintiffs from so much of the judgment- as allows Jacob Pizer to share equally with the creditors who instituted the suit. Jacob Pizer was preferred as a creditor of the second class in the deed of assignment which the suit was brought to set aside as fraudulent. 1 he summons was issued by the other plaintiffs or. December 29, 1894, and the complaint was filed on the same day, Jacob Pizer being named in both as a party defendant. Alias and pluries summons and publication were resorted to before Jacob Pizer was brought into court at the Fall Term, 1895, when further time was allowed him to answer. Pizer had meantime instituted a second action on August 1, 1895, to set aside the same assignment as fraudulent, though he was preferred therein in the second class. At February Term, 1896, Pizer filed his answer, in which he set forth that he was debarred from joining in the suit in December, 1894, because the other plaintiffs in their complaint charged that his claim was fraudulent. He disclaimed any purpose to *71 claim under the deed, and announced his concurrence in the complaint, except in so far as it assailed the bona fides of his debt. Meantime, accepting the invitation of the original plaintiffs, Emigh & Lobdel, Hartman & Richards, Wallace Elliott & Co., Win. Everett House and others were allowed to come in at February Term, 1895, and make themselves parties. Of the number then allowed to make themselves parties plaintiff, judgment of non-suit was entered against Mark H. Cohen at the Spring Term, 1895, for failure to contribute to the expenses of the action. But on the coming in of Pizer’s answer, he not only disclaimed any purpose to uphold the deed, but concurred in the charge that it was fraudulent, and asked to bo made a party plaintiff, and the court on motion ordered that he be allowed to come in as a plaintiff, after which order he personally and through his counsel actively participated in the conduct of the suit up to the rendition of the verdict on the issue as to the fraudulent character of the deed. Upon the trial the other plaintiffs withdrew all allegations in the original complaint that Pizer’s claim was fraudulent, for the reason that he had withdrawn all objections to their claims, and only the issue mentioned was finally submitted because of that understanding. The relation sustained by Pizer to the original plaintiffs, therefore, was very widely different from that occupied by Wooten, in Hanoock v. Wooten, 101 N. C., 9, which the plaintiffs seem t'o rely on in support of their contention. 1. Pizer was allowed on motion, to which there appears to have been no objection, to become a plaintiff instead of a defendant. The original plaintiffs entered no exception, as they might have then done, and in the exercise of due diligence ought to have been done, but on the contrary availed themselves of the assistance rendered by him, and treated him in all respects as they did Emigh & Lobdell and *72 other parties who accepted their in vitation and joined in the prosecution of the action on motion and order at February Term, 1895, and went so far as to withdraw their attack on his claim for the purpose of securing his co-operation on the trial of the issue of fraud. It is manifestly too late now to object to Pizer’s sharing the fruits of the recovery, which he lias the same right to claim as those plaintiffs who began to contribute under an order of the court in February, 1895, and continued to be parties till after the hearing. Having treated the suit as a general creditor’s bill by recognition of the others, who asked to come in, it is too late now for the original plaintiffs, and those who joined them by leave of the court up to the February Term, 1895, to set up a claim to the whole fund acquired by the assistance of another party, whose help they seemed so anxious to have that they admitted, what they had previously questioned, the bona fieles of his claim. Whatever may be the last moment at which a creditor can be admitted as a party plaintiff, as a rule, in view of all of the circumstances, the plaintiff appellants cannot, in the face of the invitation and orders, mentioned, avail themselves of the exception against a co-plaintiff because he has been permitted to change from an adversary to an assisting party. Pizer, in every aspect of the question, came in. without objection and in apt time. Dobson v. Simonton, 93 N. C., 268. 2. The principle laid down in Wooten v. Hancock, supra, was that the creditors, who attacked a deed of assignment and succeeded in having it set aside for fraud, are entitled to sharerata in the recovery, and are entitled to the preference over other creditors who either fail to become parties at all, or, as parties defendant, unite with the assignor in defense of the fraudulent assignment. 107 N. C., at p. 19, the Court said, “ He (Wooten) has never *73 abandoned his adverse position, and is even now insisting upon a new trial upon the issue involving the validity of the trust.” Upon the issue of fraud Pizer was actively assisting the affirmative, while Wooten fought against the finding that the deed was fraudulent, even upon the hearing in this Court. Without entering further into the discussion of the doctrine laid down in Hancock’s case, supra, it is sufficient to say that Pizer must, be treated just as if his name had appeared as a plaintiff instead of as a defendant in the original summons issued December 29, 1894. The judgment is affirmed. Affirmed.