Schuerman v. Matthews

Cassoday, J. After a careful examination of the testimony, we are forced to the conclusion that all the findings of the trial court are sustained by the evidence. No discussion of such evidence would be profitable, or is necessary. This is a creditors’ bill, brought under sec. 3029, R. S. It is claimed that the complaint fails to comply with Circuit Court Rule XXYIII in not alleging the true sum actually and equitably due on the judgment which forms the basis of this action, and also in failing to allege, in effect, that the action was not commenced or prosecuted by collusion with the judgment debtor or for the purpose of protecting his property or effects against the claims of other creditors, but for the sole purpose of compelling payment and satisfaction of the plaintiff’s own debt. The complaint sufficiently states the true sum actually and equitably due on the judgment. It is manifest, from the very nature and purpose of the rule, that it was not prescribed for the benefit and protection of the alleged fraudulent grantor or assignor, nor for [315] the benefit and protection of the alleged fraudulent grantee or assignee, but for the benefit and protection of such other parties as were supposed to be injured by such fraudulent transaction. If in the case at bar the plaintiff was in fact in collusion with the other parties to the alleged fraud, then they necessarily knew it, and such allegation would have been of no benefit to them; whereas, if he was not in such collusion, then such allegation would have been wholly immaterial so far as the' parties to the alleged fraud were concerned. But we apprehend the want of such allegation can in no event be available when raised for the first time in this court. Many other questions are elaborately discussed by counsel for the defendant, but they are either based on an assumed want of sufficient allegations in the complaint, or on an assumed want of evidence sufficient to sustain the findings of the court. Since, after careful consideration, we have reached the conclusions that the evidence is sufficient to support the findings, and the allegations of the complaint are sufficient to support not only the findings but the judgment, it becomes unnecessary to follow counsel into a specific consideration of the various questions he has discussed. By the Court.— The judgment of the circuit court is affirmed.