Pender v. . Mallett

Clark, J.: Under The Code, Section 581, the defendant mav be examined before pleadings filed to procure information in framing the complaint as was the case in Holt v. Warehouse Co., 116 N. C., 480, where it is held that an appeal from such order was premature and would be dismissed; or, the defendant may be examined after answer filed to .procure evidence in the cause, Helms v. Green, 105 N. C., 251; Vann v. Lawrence, 111 N. C., 32; and in the latter case the Court held that an appeal from such an order would be premature, pointing out that trials would be needlessly prolonged and costs extravagantly swelled if an appeal could lie to this Court, ‘ ‘upon every isolated question of practice or the admissibility of evidence, competency of witnesses or the like.” The examination in this case not having been asked to procure evidence in framing the complaint, his Honor Judge Bryan properly held at Fall Term, 1897, that the order to examine the defendants before answer filed was premature. At April Term, 1898, Judge Brown overruled the demurrer and gave the defendants till May 20, to file answer, and ordered examination to be taken May 23. The issue would regularly have been joined by filing the answer at April Term, and as by the grace of his Honor time was given till the 20th of May, he was within the practice by setting the examination for May 23, a date after issue should be joined, and the former order of Judge Bryan, made at a different stage of the cause, was not res judicata. The defendants appealed at April Term, 1898, which lay from overrul *61 ing the demurrer though not from an order directing examination of witnesses, and this was held in this case, Pender v. Mallett, 122 N. C., 163. The appeal would ordinarily stop all proceedings in the lower court, including proceedings under orders from which, if considered alone, an appeal would be premature. But in this cause, upon the case as presented, we directed that the writ of certiorari should not suspend the order of examination of the defendants — a matter which rested in the discretion of this Court, Code, Section 967. This brings us to the consideration of the demurrer, from overruling which an appeal lay, but as to which we find no error. The first two grounds of first demurrer for misjoinder are eliminated by the omission of the parties and causes of action objected to in the second or substituted complaint filed by leave of court, and the finding of fact by Judge Brown that there’ has been a discontinuance as to them. The third ground of demurrer that the complaint was argumentative and evidentiary is not ground for demurrer, but if true would have sustained a motion (if made before answer or demurrer) for a repleader and to make the complaint more explicit. Daniel v. Fowler, 120 N. C., 14. As to the first additional ground of the amended demurrer, the second complaint is not for a different cause of action and antagonistic to the first, but merely a different mode of stating the same cause of action, and if it were as the demurrer alleges, the second complaint is in effect a substituted complaint by leave of the court and might be different or even antagonistic to that stated in the original complaint, for this is not the case of an amendment of summons or even of the complaint, to confer jurisdiction by charging an entirely new cause of action dr evading defences to the original action, which *62 would not be admissible. Gilliam v. Ins. Co., 121 N. C., 369. The second additional ground of demurrer cannot be sustained. The receiver is the hand of the court, bringing this proceeding under its orders, and is not the representative of the debtors alone and can maintain an action to set aside fraudulent transactions of the debtors. 24 Am. &Eng. Enc., 699, notes; Porter v. Williams, 59 Am. Dec., 523 and notes. As to the last ground of demurrer, the defendant S.. Mallett is now a free-trader and sued as such. It is immaterial that the property came into her hands before she was made a free-trader. But even if she were not a free-trader, the action concerns property she claims as her separate property and she can be sued in regard thereto, no matter when she acquired it, her husband being joined with her as defendant. Code, Section 118, 424 (4). It cannot be allowed that when an insolvent husband (or his firm as here charged) makes over his property to his wife in fraud of his creditors, she cannot be sued for the recovery thereof because she is a married woman. If in such case the specific property (money for instance) has been invested in some other shape, the fund may be followed. Edwards v. Culberson, 11 N. C., 344 and cases there cited. No error.