Bowlin Liquor Co. v. Fauver

MR. JUSTICE SMITH delivered the opinion of the court. On September 9, 1910, the plaintiff recovered a judgment against the defendant in Park county for the sum of $239.76; execution was issued and returned unsatisfied, whereupon the plaintiff, through its attorney, moved the district court, on affidavit, for an order requiring the defendant to appear and answer concerning his property. He appeared in response to the order of the court and was examined. The record discloses the fact that several other witnesses were also examined. Mrs. Fauver, the defendant’s wife, was sworn, but he objected to her examination on account of the fact that she was his wife. The court sustained the objection, and plaintiff saved an exception to the ruling. The court appears to have been of opinion at the close of the testimony that there was cause to believe that the Fauver Liquor Company was in possession of certain personal property which had been transferred to it by the defendant in fraud of his creditors, and that Mrs. Fauver held title to certain lots in the city of Livingston which had been conveyed to her by her husband without consideration. The record discloses that the Fauver Liquor Company is a corporation, the capital stock of which Is held by various persons, among whom are some of those who were examined in this proceeding. At the close of the testimony, the following proceedings took place: ‘‘Mr. Arnold: Now, at this time I ask the court to order that the stock of merchandise and fixtures in the possession of the Fauver Liquor Company be subjected to execution against the defendant, George W. Fauver, on the theory that the property is the property of George W. Fauver. [476] “Judge Henry: Mr. Arnold, I cannot try property rights in this summary way. “Mr. Arnold: The P. J. Bowlin Liquor Company now moves the court for an order that the personal property in the possession of the Fauver Liquor Company and real property shown to be standing in the name of S. E. Fauver be declared the property of George W. Fauver and subject to execution on the judgment in this case, and that execution issue against said property for the satisfaction of the judgment in this case, together with costs. “Judge Henry: Let the record show the motion is denied. (To the overruling of which said motion the plaintiff duly excepted.) “Mr. Arnold: Now, then, I ask the court for an order, in view of the overruling of the other motion, for an order granting the P. J. Bowlin Liquor Company permission to commence an action against S. E. Fauver and the Fauver Liquor Company, for the purpose of subjecting the property in their hands, or in the hands of either of them, to execution on judgment in the case at issue. “Judge Henry: I will make the order to save time, although I will say now that I do not think it necessary. I will sign the order as to-day.” The second order is as follows: “It is ordered that the above-named plaintiff is hereby authorized, if it may be so advised, to commence suit against the Fauver Liquor Company, Sarah E. Fauver, and George Earl Fauver, or either of them, and any other person or persons, for the purpose of recovering from said persons, or either of them, any and all property belonging to or owned by defendant necessary to satisfy the judgment of the above-named plaintiff herein, together with all costs, or to set aside any and all transfers of property, real or personal, made by the defendant herein in fraud of his creditors, and do all things that may be necessary to satisfy the judgment of plaintiff herein. ’ ’ Plaintiff has appealed from the second order, and also from the order of the court denying his first motion. 1. The court correctly held that the property in the possession [1] of the Fauver Liquor Company could not be taken from [477] it in proceedings supplemental to execution, to which it was not a party. No exception was taken to the ruling of the court on this point. The second motion also included the same request, coupled with an additional prayer that the real property standing in the name of Mrs. Fauver be declared the property of her [2] husband. No duty devolved upon the court to separate the two parts of this motion, to refuse one and grant the other. It might rule on the motion as made, and if as a whole it should not have been granted, the ruling will stand. (Yoder v. Reynolds, 28 Mont. 183, 72 Pac. 417; Farleigh v. Kelley, 28 Mont. 421, 72 Pac. 756, 63 L. R. A. 319; Bair v. Struck, 29 Mont. 45, 74 Pac. 69, 63 L. R. A. 481; Dorais v. Doll, 33 Mont. 314, 83 Pac. 884; Parnell v. Davenport, 36 Mont. 571, 93 Pac. 939; In re Fleming’s Estate, 38 Mont. 57, 98 Pac. 648; Frederick v. Hale. 42 Mont. 153, 112 Pac. 70; 28 Cyc. 17.) 2. Plaintiff was not aggrieved by the second order, made at its [3] request. (Chicago etc. Ry. Co. v. White, 36 Mont. 437, 93 Pac. 350.) Both orders are affirmed. Affirmed,. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.