Schwarz, Rosenbaum & Co. v. Barley

McCLELLAN, C. J. The right of appeal exercised in this case is that given by section 426 of the Code-, and not that given by section 427. The decree dismissing the bill was no less a final decree for that it was rendered on and in response to- a motion to dismiss it for the want of equity. There has been a practice in this state to-grant motions to- dismiss with leave to- amend. Such decrees while they granted the motion to dismiss in a way, yet did not in reality dismiss the bill finally. They were in the nature of tentative or conditional decrees and not final. To- such decrees must be referred the provision of section 427 to the effect that from a decree sustaining a motion- to dismiss a bill for want of equity an appeal may be taken within thirty days. That limitation loes not apply where the motion is not only sustained hut the bill is actually and absolutely dismissed-out of court. The decree here is of this latter class, and was appealable any time within a year from its rendition. We take occasion to- repeat here what- we have said in some recent cases that the practice referred to of thus conditionally dismissing bills on motion, and in recognition of which the provision of § 427 stated above was enacted, was a bad practice, and illogical, and should not be further resorted to-. On the allegations of the hill the complainants had no claim on the stock of goods growing out of the facts that originally it had been the property of the- partnership composed of Barley & Matkin and that this firm owed the debts which complainants seek to recover by subjecting these goods or their proceeds, for, by a bona -fide and valid agreement by which the partnership had been settled and dissolved, the stock of goods became the individual property of Matkin. .But the co-mplain [443] ants were creditors of Matkin individually as well as of the firm of Barley & Matkin, and they had the same rights in respect of this stock of goods in Matkin’s hands as if it had all along been his individual property, and he alone owed these debts. Unless this property was exempt to Matkin, these complainants had a right to pursue it by this bill into the hands of a fraudulent purchaser and subject it or its proceeds to the payment of their claims. The allegations of the bill sIioav that Mat-kin made a transfer of the goods to Mrs. Walston with intent to hinder or delay or defraud his creditors, that she participated in this intent, that the consideration paid by her Avas simulated or inadequate, that Matkin reserved a benefit to himself in the transaction, to Avit, employment in the sale of the goods and a share of their proceeds, and that the goods have been disposed of by Mrs. Walston and she and Matkin now have the proceeds, etc. Of course, if this stock of goods was all the property OAvned by Matkin and its value, as the bill alleges, was less than one thousand dollars, the complainants were not hindered or delayed or defrauded by this transaction since they could not have subjected the goods had they remained in the hands of their debtor, being secured to him by the exemption statute. But the bill does not show that this was all the property Matkin owned, or, even that he Avas insolvent: So it cannot be said that bill shoAvs. complainants have not been injured by this alleged fraudulent transaction. For aught that appears Matkin may have had other property, Avhich Avith this, amounted to tAvicethe exemption allowed him, and he may claim that other property and not this as exempt, indeed he may have already filed his claim of exemption embracing such other property and not this. Hence our conclusion that this bill has equity to reach this property or its proceeds as Matldn’s individual property to the debts Avhich he owes individually to the complainants, and that of consequence the motion to dismiss should have been denied. The assignments of demurrer also proceed upon the assumption that the bill shows that this stock of goods [444] was exempt property. As it does not, the demurrer should also have been overruled. The decree below must be reversed and a decree will be here entered overruling the demurrer and the motion to dismiss the bill. Reversed and rendered. Tyson, Simpson and Anderson, J.J., concurring.