Winslow v. Dousman

By the Court, Cole, J. We have no doubt that the legislature, by the passage of chapter 803, Laws of 1860, intended to restore the remedy by creditor’s bill substantially as it had existed under chapter 84, R S. 1849. The law of 1860 was passed immediately upon' the decision in Graham v. La Crosse & Milwaukee R. R. Co., 10 Wis., 459, being announced, wherein it was held that the remedy by creditor’s bill, as it had theretofore existed, had been superseded by the supplementary proceeding under the code; and the manifest object of the act was to restore the former remedy. No other conclusion is admissible in view of the history of legislation upon this subject. And I am confident that in some unreported case, the title of which I am unable to recall, this precise point has already been decided by this court. * However this may be, the language used in the first section of the law of 1860 is almost identical with that employed in section 7, chap. 84, R S. 1849, and a clearer case of an intention to restore the former remedy can hardly be presented. The point, therefore, that the remedy given by chap. 303 is something different in its scope and purpose from the old remedy by creditor’s bill, cannot be successfully maintained. [462] The question then arises, is the complaint in this case good under the old practice? The principal objection taken to the complaint by the appellant is, that it professes to set out three causes of action of distinct natures, against three defendants not connected in interest. It is argued that the complaint states one cause of action against George D. Dousman, in the nature of a general creditor’s suit under chapter 303, Laws of 1860; another against George D. and Henry M. Dousman, to have the conveyance of lot 1, block, 19, declared void as to creditors, and subject the property to the payment of the judgment mentioned in the complaint; anda third against George D. and Martha A. Dousman, to have anotherjconveyance of other real estate likewise declared void as to creditors, and subject that to the payment of the same judgment. The object of the suit then is, to reach property which the judgment debtor George D. Dousman has fraudulently conveyed to ■ his son Henry M., and a portion of which the latter conveyed to his mother Martha A., wife of George D., for the purpose of placing it beyond the reach of creditors. The claim against all is of the same nature, that all the defendants have combined and acted in concert in these fraudulent transactions, and “ all have a common interest centering in the point in issue in the cause.” So that, while the title to one piece of property is in one defendant, and the title to some other distinct piece in another defendant, yet these various titles were taken and are now held for a common purpose, and to accomplish the same fraudulent end. All are privy to and have been concerned in acts tending to the same illegal result. The matters are not distinct, but are, in truth, all connected with the same fraudulent transaction, in which all the defendants have participated. Where this is the relation of the defendants, it has been held that they may be joined in the same suit. In the case of Fellows v. Fellows, 4 Cowen, 682, this whole subject in regard to multifariousness in a creditor’s bill is most ably discussed, and the authorities reviewed. The rule deduced from the cases was, [463] that “ where several persons, although unconnected with each other, are made defendants, a demurrer will not lie if they have a common interest centering in the point in issue in the cause.” P. 700. The allegations in this case bring the case fully within the reach of that principle. Here the defendants were connected in the same purpose, and have a common interest in the point in issue. "We do not think there is any improper joinder of defendants, or of causes of action, in the complaint. The order of the circuit court overruling the demurrer is affirmed.