Davis v. Novotney

Fuller, P. J. This appeal is from an order sustaining a demurrer to the complaint in an action by the trustee of a bankrupt estate to nullify certain attachments, liens, and judgments, and to recover, either the value of or the property seized and sold thereunder, by numerous creditors, within four months prior to the filing of a petition in bankruptcy. It is alleged in substance .that on the 17th day of August, 1898, Matous Novotny, then and long prior thereto an insolvent retail merchant, fraudulently, without consid — 120 — eration, and to defeat the just claims of creditors, to whom he was indebted in the sum of $15,000, executed to his brother a chattel mortgage to secure a fictitious indebtedness of $15,500, covering his entire stock in trade and personal effects, of the aggregate value of $10,000, which, with real property worth $2,500, practically constituted his entire assets. Immediately ■ after the execution of this mortgage, four of these defendants seized and took portions of the goods of such insolvent debtor, by virtue of respective writs of replevin, in an action by each against him, and later obtained judgments, by which they were found to be the owners, and entitled to the possession of the particular property described in their respective complaints. Nine other of these defendants levied attachments on other articles of his personal property in respective actions, commenced and prosecuted to judgment against such insolvent, and the goods so levied upon were sold on execution in satisfaction thereof. At one of the sales under execution, a stranger to the suit, but a party defendant in this action, became the purchaser. “That all said replevin actions and actions wherein attachments were levied and judgments entered and executions issued, and the goods taken thereunder, were commenced within four months next prior to the filing of said petition in bankruptcy, and at the time when the said Matous Novotny was hopelessly insolvent, which insolvency was then well known to each and all of such defendants, they well knowing that the transactions aforesaid were in fraud of the bankruptcy laws, and were for the purpose of obtaining preference over the rights of the plaintiff.” That portion of Section 67 of the federal bankruptcy act upon which plaintiff relies provides: “That all .conveyances, transfers, assignments, or incumbrances of his property, or any part thereof, made or given by a person adjudged a bankrupt under the provisions of this act subsequent to the passage of this act and — 121 — within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay, or defraud his creditors, or any of them, shall be null and void as against the creditors of such debtor, except as to purchasers in good faith and for a present fair consideration; and all property of the debtor conveyed, transferred, assigned, or incumbered as aforesaid shall, if he be adjudged a bankrupt, and the same is not exempt from execution and liability for debts by the law of his domicile, be and remain a part of the assets and estate of the bankrupt and shall pass to his said trustee, whose duty it shall be to recover and reclaim the same by legal proceedings or otherwise for the benefit of the creditors. And all conveyances, transfers, or incumbrances of his property made by a debtor at any time within four months prior to the filing of the petition against him, and while insolvent, which are held null and void as against the creditors of such debtor by the laws of the state, territory, or district in which such property is situated, shall be deemed null and void under this act against the creditors of such debtor if he be adjudged a bankrupt, and such property shall pass to the assignee and be by him reclaimed and recovered for the benefit of the creditors of the bankrupt. That all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent at any time within four months prior to the filing of a pe:ition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt. * * * Provided, That nothing herein contained shall have the effect to destroy or impair the title obtained by such levy, judgment, attachment, or other lien, of a bona fide purchaser for value who shall have acquired the same — 122 — without notice or reasonable cause for inquiry.” The order sustaining the demurrer to plaintiff’s complaint must be affirmed, if any of the following grounds thereof are tenable: “ (i) That the court has no jurisdiction of the subject of the action; (2) that several causes of action have been improperly united; .(3) that the complaint does not state facts sufficient to constitute-a cause of action.” As we view the points presented by the demurrer, it will only be necessary to'determine whether several causes of action have been improperly united. It is. clearly shown by the allegations of the complaint that each of the attaching creditors named seized, in a separate suit, and in satisfaction of his judgment sold, different property of the debtor, and there was no conflict between such creditors with reference to their respective claims. Nor was there any contention among the different plaintiffs in the several actions in claim and delivery, each of whom was adjudged to be the owner and entitled to the immediate possession of the identical property described in his complaint. According to Section 4932 of the Compiled Taws, “the plaintiff may unite, in the same complaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they all rise out of: (1) The same transaction or transactions connected with the same subject of action. * * (6) Claims to recover personal property, with or without damages for the withholding thereof. * * * But the causes of action, so united, must all belong to one of these classes, and, except in actions for the foreclosure of mortgages, must affect all the parties to the action. * * *” Not one of the attaching creditors made a defendant in this action has the slightest interest in or claim upon any of the property taken by a co-defendant, whether by attachment or replevin; nor can it be said that the several causes of action alleged in the complaint “rise out of the same transaction or transac. — 123 — tions connected with the same subject of action.” In the case of Atchison T. & S. F. R. Co. v. Board of Com’rs of Sumner Co., 51 Kan. 617, 33 Pac. 312, it is held that, “A cause of action in favor of the plaintiff and against one defendant cannot be united with anothei cause of action in favor of the same plaintiff against another defendant, where neither defendant is interested in the cause of action alleged against the other.” The facts to establish the liability of the various defendants being entirely dissimilar, and the defenses likely to be essentially different, the case is of necessity seriously complicated, and the rights of the defendants may be greatly prejudiced by requiring them to defend in this action. In 15 Enc. Pl. & Prac. 547, the author states that, “It is a well settled rule of practice that two or more parties cannot be joined as defendants in one action when the liability of each depends upon causes of action which are essentially distinct and several.” The complaint is not only subject to the objection that several causes of action have been impropely united, but to the objection that there is a misjoinder of parties defendant. Johnson v. Kirby, 65 Cal. 482, 4 Pac. 458; Riggs v. Bell, 39 La. Ann. 1030, 3 South 183; Lovelace v. Doran & Wright Co. (Sup.) 15 N. Y. Supp. 279; Cook v. Horwitz, 10 Hun. 586; Nichols v. Drew, 94 N. Y. 22; Alger v. Scoville, 6 How. Prac. 131. In addition to the property seized and sold in satisfaction of final judgments obtained by numerous attaching creditors, plaintiff seeks to recover property or its proceeds, which was, by a court of competent jurisdiction, adjudged in several different suits to actually belong to certain of the defendants, and there is not the slightest connection between any of the transactions out of which the causes of action alleged in the complaint arose. Whether the complaint states facts sufficient to constitute a cause of action, or whether one circuit court has juris — 124 — diction of an action to annul judgments of another circuit court, are questions that need not be determined. The order appealed from, sustaining the demurrer is affirmed.