Smith v. . Summerfield

SHEPHERD, J : 1, The first ground assigned as a cause of demurrer presents the question whether this action should not have been brought in the form of a general creditor’s bill. In Hancock v. Wooten, (107 N. C., 9), we attempted to distinguish a general creditor’s from a judgment credit- or’s bill and in the course of the discussion, in speaking of the former, we used the following language: “Such bills are usually instituted for the purpose of winding up the insolvent estates of deceased persons or the affairs of a corporation. These may be illustrated by the cases of Pegram v. Armstrong, 82 N. C., 326; Wordsworth v. Davis, 75 N. C., 159; Long v. Bank 81 N. C., 41; Glenn v. Bank, 80 N. C., 97 and Dobson v. Simonton, 93 N. C., 268. In such cases there are many parties standing in the same *287 situation as to their rights or claims upon a particular estate or fund, and the shares of a part cannot be determined until the rights of all the others are settled or ascertained. Of this nature also are bills brought to enforce trusts or assignments for creditors and other instances where there isa community of interest, or where the law devolves upon the Court the duty of taking a fund into its custody and distributing it according to the respective interests of the parties.” A glance at the complaint will disclose that the present action is not within the principle above stated. It is brought by several creditors for the purpose of obtaining judgments for their respective claims, and to set aside certain alleged fraudulent assignments made by the defendants. Such relief may be obtained in the same action (Bank v. Harris, 84 N. C., 206), and several creditors may unite as parties plaintiff and acquire a preference by way of equitable lien. Hancock v. Wooten, supra. The general creditors have no lien upon copartnership assets (Allen v. Grissom, 90 N. C., 90), and the Court only requires all of them to be made parties, and decrees a pro rata distribution in cases of dissolution, when, at the instance of one or all of the partners, or of a purchaser under execution or otherwise of the interest of an individual partner, it undertakes to wind up the partnership affairs and ascertain the rights of such individual partners, or their successors in interest. As each partner has an equitable right to have the assets applied to the joint indebtedness, it is necessary that the claims of all of the creditors should be ascertained, and the creditors being thus before the Court, an equitable distribution is made. This is not the nature of the present action. Under the former system a creditor of a copartnership could obtain a judgment at law and sell the copartnership property under execution. He could also institute a judgment creditor’s bill to reach equitable assets, or to remove obstructions (such as fraudulent conveyances, *288 &c.) interposed by the debtor to the subjection of legal assets, A judgment creditor’s bill was generally said to be in the nature of an equitable/¿./a., and we have seen that such an action may now be maintained without a precedent judgment, and that several creditors may unite in the same. Upon the authorities above mentioned, we are of the opinion that this action need not have been brought in the form of a general creditor’s bill, and the uemurrer in this respect must be overruled. 2. For the same reasons the second ground of demurrer, that there is a misjoinder of parties plaintiff, is without merit, and the demurrer in this particular must likewise be overruled. ■ 3. The third and fourth grounds of demurrer are untenable. A demurrer does not lie except in the cases specifically mentioned in section 239 of The Code. Dunn v. Barnes, 73 N. C., 273. Redundancy and impertinence in pleading must be objected to by way of motion before answer or demurrer (Best v. Clyde, 86 N. C., 4), and the same is true as to argumentativeness, “ indefiniteness or uncertainty, unless the uncertainty be such as to state no cause of action.” Boone Code PI, 54, 146. 4. The fifth and sixth grounds of demurrer are also untenable. It is alleged that one of the partners conveyed certain individual property to C. Summerfield and Isadore Summer-field. This property, of course, cannot be reached unless these persons are made parties, and until this is done it may be considered as out of the case. It is not necessary for the creditors, in an action of this character, to subject all of the property of a debtor (Munroe v. Lewald, 107 N. C., 655); they may proceed against a party only; and this being so, the presence of the persons named is entirely unnecessary to the determination of the controversy, in so far as it affects other property in which they have no interest. “ In order to sustain a demurrer or a defect of parties, it must appear that *289 the party demurring has an interest in having the omitted parties joined, or that he is prejudiced by the non-joinder.” Boone, mpm, 51. Such is not the case here. 5. The seventh ground is also without merit. We know of no law requiring copies of the deeds of assignment to be attached to the complaint. 6. The mótion to dismiss because the complaint does not state facts sufficient to constitute a cause of action is denied. The allegation that goods were sold and delivered of the value of a certain amount, and that the same has not been paid, is a sufficient averment of indebtedness in a case like the present. Upon the whole complaint, we think there are facts constituting a cause of action. Affirmed.