Edenfield v. C v. Seal Co., Inc. , 83 Mont. 49 ( 1928 )

I dissent. In my opinion, plaintiff had a plain, speedy, adequate and complete remedy at law. Until he had exhausted that he had no standing in a court of equity (Wilson v. Harris,21 Mont. 374, 54 P. 46; Westheimer v. Goodkind, 24 Mont. 90,60 P. 813; Wyman v. Jensen, 26 Mont. 227, 67 P. 116), and, in my opinion, he did not do it. Plaintiff alleged and the trial court found there was no consideration for the alleged sale of Seal's property to the Seal Company and that there was no delivery or change of possession thereof but that all thereof, at all times, was owned by Seal and remained in his possession and under his control, as the owner thereof; and there is substantial evidence to support the findings. Those basic findings being supported and accepted as true, in my opinion it is immaterial what other findings were made. Under those circumstances, plaintiff's remedy at law was to ignore the alleged fraudulent sale and to have an officer, by his direction, seize the property on writ of attachment or execution writ and sell it, if taken on execution, or hold it, pending judgment, if taken by attachment. There was no excuse for not doing so. (Wilson v. Harris, supra;Westheimer v. Goodkind, supra; Wyman v. Jensen, supra.) There was no obstruction to the enforcement, by legal process, of his right to take the property. "It does not appear that the property was concealed or that it was incapable of manual delivery." (Wilson v. Harris, supra.) As pointed out inWilson v. Harris, supra, if any property seized be claimed by a third party, the creditor may keep in force the seizure by furnishing an indemnifying bond, if taken by attachment (sec. 9273, Rev. Codes, 1921), and, if upon levy under execution, action may be taken against such party. (Sec. 9460, Rev. Codes, 1921.) If unable to give the indemnifying bond, if demanded, which is not pleaded, he might at least go that far and show he had gone so far as he could and thus exhaust his law remedy to the extent of his ability. None of those things did plaintiff do.

According to the allegations and the findings above referred to, supported by evidence, for months after rendition of plaintiff's judgment and for weeks after issuance of execution writs all of the property was in the possession and under the control of Seal, as owner, and I see no justification for plaintiff in not having all of the property attached or levied upon, instead of foregoing that opportunity and seeking the aid of equity. As to speed, the former course would have been speedier than the one herein pursued. That it was a plain remedy is shown by the statutes and the decisions of this court I have cited. Of course, he was not required to pursue that remedy unless it was as adequate and complete, effective and efficient, as a suit in equity (Bullard v. Zimmerman, 82 Mont. 434,268 P. 512), but to my mind, it is apparent it was as adequate and complete, effective and efficient, as this proceeding, and more so. If it may be said it might have resulted in litigation with another party claiming the property, the answer is that it could have resulted in no more than has this proceeding. (Wilson v.Harris, supra.) It was "so proximately certain as to be adequate to right the wrong complained of." (Gray v. Citizens'Gas Co., 206 Pa. 303, 55 A. 988.)

"The extraordinary and peculiar powers of equity cannot be successfully invoked by those who have failed to first avail of whatever procedure the law affords." (Wilson v. Harris, supra.) "Before coming into equity, he must exhaust his legal remedy." (Wyman v. Jensen, supra.) "After the exhaustion of legal remedies, the extraordinary jurisdiction of chancery may be invoked." (Westheimer v. Goodkind, supra.) In Wilson v.Harris, supra, this court speaks deprecatingly of the "strong temptation" to creditors aggrieved by transfers of property by debtors, which arouse suspicion, to invoke the powers of equity, before exhausting their remedies at law. Of the appeal to equity, the opinion says: "The proceeding is not very expensive, involves no great responsibility or risk and is not infrequently resorted to when unnecessary." It says, further, appeals by creditors to equity should not be encouraged unless a case is "strictly within the well established principles which determine the creditor's right to resort to equity." It is not every case of fraudulent transfer of property in which equity will interfere. A creditor, to avail himself of equity powers, must first do certain things, if possible, or show he could not do them, and put himself in a position to invoke equity.

The majority opinion refers to the fact that the answer denies the allegations of the complaint hereinbefore mentioned. It does, but the trial court found that the allegations were true. Plaintiff made them and, in my opinion, he is bound by them and upon appeal may not be allowed to repudiate them and take an opposite and inconsistent stand. (Waite v. Shoemaker Co.,50 Mont. 264, 146 P. 736; Columbus State Bank v. Erb, 50 Mont. 442,147 P. 617.) A pleader is presumed to have made his pleadings as strong in his favor as he could and it must be so taken. (Montana Amusement Sec. Co. v. Goldwyn Dist. Corp.,56 Mont. 215, 182 P. 119.) It devolved upon plaintiff to make out his case and to make it out in accordance with his allegations. (Marcellus v. Wright, 65 Mont. 580, 212 P. 299.) Upon appeal, counsel for plaintiff urge that this court should affirm the judgment "irrespective of the allegations of the complaint" but I do not believe that proper. (Waite v. Shoemaker Co., supra.)

Counsel for plaintiff cite and rely upon the cases of Wheeler Motter Merc. Co. v. Moon, 49 Mont. 307, 141 P. 665, andHarrison v. Riddell, 64 Mont. 466, 210 P. 460; but I do not believe them applicable or inconsistent with the cases I have cited. In the Moon Case, decided on demurrer, it was alleged that the goods sold were transferred and that the purchaser took immediate possession, the exact opposite of the allegations, proof and findings in this case. Hence, it was held in the MoonCase that the purchaser was subject to garnishment and that it created a lien; not so here. In the Riddell Case, there was no allegation of nondelivery or no change of possession, as here, but the opinion shows that there was a "transfer of the business and property to the corporation." Moreover, in the Riddell Case the plaintiff was not satisfied with issuance of execution and return thereof nulla bona; he resorted to supplemental proceedings and failing by them to discover any property subject to his judgment he then resorted to equity and his right to do so was not questioned or an issue in the case. In the case at bar, plaintiff did not do that. He was content to rest upon execution returns practicallynulla bona and then turn to equity, notwithstanding he swore in his verified complaint that there had never been any delivery or change of possession of the debtor's personal property, capable of manual delivery, but that, at all times, it was in the possession of the debtor, as the owner thereof, and notwithstanding he offered proof to support the charge and the trial court found it to be true. This is quite a different situation, in my opinion, from that disclosed by either of the two cases last mentioned. Had plaintiff even resorted to supplemental proceedings as was done in the Riddell Case, and apparently uncovered nothing, he would have come much nearer to putting himself in a position in which he could turn, justifiably, to equity for aid.

So far as the record in this case may disclose a disposition or any attempt to defraud, I have no sympathy with any such disposition or attempt but, upon plaintiff's theory of the case, I am convinced from the allegations of the complaint, the evidence and the findings of the trial court that there was no transfer of property to set aside and that there was at all times in Seal's possession personal property subject to the judgment and subject to manual seizure, which plaintiff easily could have had attached or levied upon, and that he had therein a plain, speedy and adequate remedy at law, proximately certain, which he should have used before resorting to equity and, failing so to do, he had no right to resort to equity. Indeed, as said inWilson v. Harris, supra, until such remedy be used and exhausted, equity has no jurisdiction, for, as there said "equity may act in those matters only in which no remedy is afforded in the ordinary course of law or in which the remedy at law is deficient." Moreover, so far as the record discloses, much of the property may still be in Seal's possession and subject to execution levy."

Rehearing denied October 1, 1928.