Linsey v. McGannon

Moore, Judge: Oliver Linsey filed bis- bill in chancery in the municipal court of Wheeling,- at the June rules, 1874; against John McGannon, and others, to enforce the lien of a judgment he had obtained in the -county court of Ohio county, on the seventeenth day of- April, 1874, against Thomas-Seabrook aud said’ John McGannon,partners as — 156 — “Seabrook and McGannon?’ and to procure satisfaction "of his judgment out of certain real estate, alleged to have been conveyed by John McGannon, in trust for bis wife, and in fraud of' his creditors. On the twenty-first day of July, 1874, a decree was rendered, in default of any answer, sotting aside the said conveyance as having been made with intent to delay, hinder and defraud creditors, and as having been made without a consideration' deemed valuable in law; and referring the cause to a commissioner to ascertain what liens existed on the real estate of said McGannon, and the amounts ''and priorities thereof, etc. On the first day of September, 1874, McGannon and wife gave notice to the plaintiff that they would move the judge of the said municipal court to review and reverse the said'decree, for causes in said notice mentioned. Pending this- motion, on the twenty-first September, 1874, Small, Schoemick, Aick and Clifford, creditors of Seabrook and McGannon, moved the court to admit them as defendants in said suit, and to file their answers, which was then done, their claims being judgments; either before the county court, or of a justice of the peace. On the twenty-fifth day of January, 1875, the motion to review and reverse the decree of July 21, 1874, was heard and determined, and the decree was reversed, and leave granted the "plaintiff, or any of the creditors of the plaintiff, who have rightly been made parties,” to amend the original bill, on equitable terms, and to prosecute the cause, at their costs, "or the costs that may be adjudged against them.” The plaintiff,- Linsey, filed his amended bill, March, 1875. At the March rules, 1875, McGannon and wife demurred to the bill, and-at the April rules, 1875, filed what purported to be their joint answer‘to'said bill, in which they alleged “that on the fourth day of September, 1874, the said John McGannon satisfied the plaintiff of his demand,” and exhibited a transcript from the — 157 — records oí the county court showing that the plaintiff in person, admitted the release in open court, and that he" was satisfied with the same; and that the county court on the fifteenth day of October, 1874, entered of record, satisfaction of said judgment as to McGannon, but not to the prejudice of the plaintiff against the said Scabrook. The acknowledgement of satisfaction of the judgment, as to McGannon, was made, in writing, by Linsey, September 4, 1874. On March 30, 1875, the affidavit of the plaintiff, Lin-sey, was taken and filed in this cause, then pending in the municipal court, stating that he then had no claim against McGannon ; that it had been, long since, satisfied, and that he had never ordered any suit in that court for the same, and directed the suit to be dismissed. On May 17, 1875, Joseph Clifford, with leave of court, filed his petition, and the exhibit therewith, to be made a party complainant in the suit, to enforce a judgment obtained by him in the county court, April 8, 1874? against McGannon and Seabrook, for the sum of $79.50. The prayer of the petitioner was granted, and he was made a party complainant. On the 28 June, 1875, the municipal court' rendered the decree, now principally complained of in this appeal. The first question, presented for our consideration, is the motion of the appellees to dismiss the appeal, as improvidentlv'allowed. They argue there ivas no decree which came within the terms of the law. Acts 1872-3, chr. 17, sect. 1, p. 56. The seventh clause of the first section, chapter seventeen, Acts 1872-3, authorizes an appeal, “in a case in chancery, wherein there is a decree or order dissolving an injunction, or requiring money to be paid, or the possession or title of property to be changed.” The decree of June 28,1875, declares that the conveyance of November 19,1873, made by McGannon and wife to Woods, was made “with intent to delay, hinder and de — 158 — fraud . his creditors, and that the said . conveyance was "made without a consideration deemed valuable in law, and that the said plaintiff, and the said Michael Sehcem-ick, George W. Wilson and others were creditors whose debt.s were contracted before the said fraudulent conveyance was made; it is, therefore, adjudged, .ordered .and decreed, that the said fraudulent conveyance * * ' * * * is declared vqid, and is set aside by this Court.” The decree certainly requires “the possession or title of property t.o. be changed.” I am, therefore,' of opinion the appeal was rightfully allowed, and that,the motion to dismiss it should be overruled. ■ The first objection, urged by appellant, is the want of jurisdiction in the municipal court to enforce the judgment lien, because, the judgment was obtained in the county court. Section eight, chapter one hundred and thirty-nine, Code, declares: “The lien of a judgment, may always be enforced in a court of equity.” Chapter eighty-eight, Acts 1869, p. 51, confers upon the municipal court, “within the city, the same jurisdiction and. powers at law and in equity, in civil suits and proceedings where the amount in controversy exceeds one hundred dollars, exclusive of interest and costs, or the possession or title of real or personal estate is"concerned, as the circuit court of Ohio county now has, or may hereafter be vested with, but in the following cases only: I. Where the defendant or one, of the defendants resides in the city; . II. Where the cause of action arose in the city; III. Where the property, real or .personal, the title or possession of which is in controversy, or some part of such property, is in the city; IY. Where,” etc. As^the court,is a cou¡rt of equity, and. the defendants are residents, of the city,.-and the pfpperty is alleged to — 159 — be in the city, X can see no good reason why the muriici-pal court should not take cognizance of this case. When a party has a judgment lien to- be enforced, and has, at his election, courts with concurrent equity jurisdiction, it is reasonable to suppose that he would select that tribunal which would give the speediest relief.- As the municipal court holds its terms, “in every month- in which it is not, by law, provided that a circuit court-for Ohio county shall commence,” (Acts 1869, ch. 88, sect. 2,) it certainly affords greater facility for relief than either the circuit, or county court;-and, no doubt, that was one object in its creation, and the' subsequent enlargement of its jurisdiction by the Act of 1869, which conferred upon it equity jurisdiction and powers. I am of opinion, therefore, that the municipal codrt did not err, in taking and retaining jurisdiction of the cause. The appellants object to the decree of twenty-eighth of June, 1875 : . First■ — -Because, “ the decree was made in the name of Oliver Linsey, alone, when in fact, he had no further interest in the same, and ought not to be made further liable for the costs of the case.” The title of the suit was, “ Oliver Linsey v. John McGannon, et al.” The plaintiff had á right, and in fact it was proper for him, to acknowledge satisfaction of his claim, and to dismiss the suit so'far as*he, alone, was concerned. But notwithstanding Linsey admitted satisfaction of his claim against McGannon, and directed the suit to be dismissed, the court, nevertheless, merely directed that satisfaction of said judgment be entered of record, but did not dismiss the suit. The suit properly remained in court under its original title; as it had become a credit- or’s suit, and the rights of other parties were to be adjudicated therein; and no prejudice was- done either to the original plaintiff, or the -appellants thereby, I am, therefore^ .of opinion,- -that the mere satisfying -of Lin160 sey’s claim, gave the appellants no right to have the "suit dismissed ; especially so, as Clifford had been made a party plaintiff, and Small, Schoemick, Aick, and Wilson, as creditors, had been made defendants before the satisfaction of Linsey had been brought to the notice of the court, and the matters had been referred to a commissioner ; and, as argued by the appellees, these creditors could not have brought other suits while this was pending, and therefore, had distinct and independent interests in this. As to the objection now made by the appellant, that the cause was heard upon the deposition of Oliver Lin-sey, when no notice had been giveiffof the taking thereof to Maria MeGannon. The record does not disclose that any exception ■ had been taken in the court below to the reading of the deposition of Linsey, or for any error or irregularity in the taking thereof; and inasmuch as he appears, so far as the record discloses, to have been a competent witness, it is too late to raise the objection .in the Appellate Court. The third objection made to the decree of June 28, 1875, by the appellants, is, “that the case Avas heard upon the decree first pronounced in this case, and upon the petition of John MeGannon for the reversal of the said decree first made, and upon the exhibits made to that petition, and upon the decree of reversal of the said decree — those matters having no right to 'be considered again, or to enter into this hearing.” The usual form of a decree, is: “ This cause came on this day to be heard, upon the papers heretofore read,” etc. Certainly it is not error to specify what papers were read, if the court prefers that style instead of the shorter .form; and if the court .deems proper to consider the whole -record of its former proceedings in .the cause 'before-.entering .its decree, I cannot see the impropriety — 161 — in stating the fact in the decree, but it is right and ProPer- The objection, that the case was not heard upon the answer of the appellants, is not tenable. It is true, the decree does not show that the court considered the answer; but, although it was irregular not to have heard it upon rendering the decree, yet it would not have changed the results; because, the satisfaction of Linsey’s judgment against the appellants, which the answer sets out, had been entered of record in thejsuit by a former order of the court, upon the appellants’ motion; and, in that respect, the appellants were not injured by the ignoring of the answer in the decree complained of, and, for the reason hereinbefore expressed, were not entitled to have the suit dismissed, in consequence of having satisfied Linsey. And so far as the answer sets up the homestead, the appellants are not injured by the ignoring the answer, because the debts were contracted before the declaration of the exemption was recorded under chapter 193, section 10, Acts 1872-3. If there is any error in the decree, it consists in declaring the conveyance void, and setting it aside absolutely, when it should have been declared void, and set aside only as to the creditors, whose debts were contracted before the time of making said conveyance. The decree should be corrected in that respect. I am, therefore, of opinion that said decree should be corrected in that respect, but affirmed in all other matters, with costs and $30 damages. The other Judges concurred. Decree Reversed in part, and Affirmed in part. :