Cincinnati, Union, & Fort Wayne Railroad v. Wynne

Perkins, J.— William, Brandon and wife executed a deed, conveying to the Cincinnati, Union, and Fort Wayne Railroad Company, a large amount of real estate, situate in Jay county, Indiana. Wynne, and a large number of other judgment creditors of Brandon, filed a complaint in the Jay Circuit Court, charging that the conveyance by the Brandons was fraudulent, and asking that it be set aside. The railroad company answered, setting up a former judgment in the Circuit Court of the United States, held in the district of Indiana, between the same parties, upon the same cause of action, which judgment was in favor of the railroad company, &c. A transcript of that judgment was filed with, and made a part of the answer. A demurrer to this answer was overruled, and the cause was continued. At a subsequent term, certain other creditors of Brandon, who were not parties to the former suit in the Circuit Court of the United States, came in and severally set out their judgments, and asked that the conveyance by Brandon and wife to the railroad company be set aside as to [386] them. They filed their complaint as an amendment to the bill then pending, and to which an answer was on file. To this amendment the railroad company answered, setting up the former judgment in the Circuit Court of the United States in bar, making the copy thereof filed with their first answer, a part of the second, by reference. To this answer a demurrer was sustained, and a final judgment thereupon rendered, setting aside the conveyances by the Brandons to the railroad company as fraudulent as to all the creditors then parties to the proceedings in the Jay Circuit Court. It has been held in Indiana, that the pendency of a suit for the same cause of action in a Court in another government, cannot be answered in bar of an action in a Court in this government. Perk. Pr. 223.—2 Dan. Ch. Pr. 721. But see 2 Kent, p. 122; Mitford’s Eq. Pl., top p. 291. See Story’s Eq. Pl., 748. On the other hand, a judgment rendered upon the same cause of action, by a foreign Court which had jurisdiction of the subject-matter of the suit and the parties to it, may be set up in bar of a suit in this state. Story’s Eq. Pl., p. 784.—Perk. Pr., 233.—2 Dan. Ch. Pr., p. 753, et seq. Looking now to the manner in which the law was applied in this case, if we are to regard the amendment filed to the complaint, as bringing along with it the original complaint, so as, in fact, to take it out of the operation of the answer filed to it, and make it, with the amendment filed, an entire new complaint in the whole case, filed at the time of filing the amendment, then we must regard the answer filed to that complaint, as bringing along, by reference, the answer filed to the original complaint, and making it, with the amendment, an answer to the entire complaint as amended. If thus regarded, the answer was sufficient in point of form; for it is not necessary that the suits pleaded should be between the same parties nominally. Other parties may be shown to be concluded by the judgment. Authorities, supra, and 8 Blackf. 175. If, on the other hand, we regard the original complaint, and the answer thereto, as left standing upon the record, [387] and the amendment as an addition to be answered by itself, as would appear, from the mode of pleading adopted, to have been the understanding of the parties, then it was error, in deciding simply upon the answer to the amendment, for the Court to determine the rights of parties, already settled by the overruling of the demurrer to the answer to the original bill, and whose rights the amendment did not affect, nor purport to bring in question, but only the rights of the new parties brought in by the amendment; inasmuch as the Court did not intimate any intention to change the decision it had already made on the original complaint and answer thereto. See Story’s Eq. Pl., p. 707. See, as to the effect of a fraudulent conveyance upon subsequent creditors, Pennington v. Clifton, 11 Ind. R. 162. J. Smith, for the appellants. O. P. Morton and J. B. Julian, for the appellees. We think the proceedings in this cause have not resulted in such an investigation of its merits as is due to justice, and that it should be reversed and remanded for further proceedings, with leave to both parties to amend their pleadings, &c. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.