Whipple v. Cass

Stockton, J. The petitioners, claiming to be the creditors of Cass, could not be permitted to defend the suit for him, and show that he was not indebted to the plaintiff, Whipple, in the amount claimed, or any other sum. Cass was duly served with notice of the action, and if he did not make defense, no one else could defend for him. Nor could the creditors be permitted to show that the attachment was wrongfully sued out, and ought to be quashed. Such defense lay only with the defendant, Cass, and he did not see proper to make any such defense, if any such existed. Nor should the petitioner have been allowed to take issue on the facts alleged in the plaintiff’s petition for attachment. It has been held by this court that no such issue can be made, even by the defendant in the principal suit. Sackett, Belcher & Co. v. Partridge & Cook, 4 Iowa, 416. Much less can such issue be made by an entire stranger to the suit. The particular object of the creditors, in’ their petition to the court, was to be allowed to show that the suit is prosecuted by collusion between the plaintiff, Whipple, and the defendant, Cass, for the purpose of hindering, delaying, and defrauding the creditors of said Cass; in order that by such showing, they may be enabled to postpone the lien [129] of the plaintiffs upon the goods attached, and that their own lien may be declared prior thereto. We think the petitioners have chosen the wrong jurisdiction for the assertion of their rights. We see no method in which the relief sought can be awarded in a court of law, even taking all the facts alleged to be brought to its knowledge. Fraud, it is true, vitiates all contracts, even so solemn a proceeding as a judgment of a court of record. Rut the relief sought by the petitioners, in this instance, is such only as can be administered in a court of equity, where frauds, such as are alleged iu the present case, are peculiarly cognizable. Judgment affirmed.