Allen v. Cooley , 60 S.C. 353 ( 1901 )

April 18, 1901. The opinion of the Court was delivered by The complaint in this action, which is reported herewith, seeks to set aside as fraudulent and void a sale of the stock of goods of the late firm of Allen Cooley, made by defendant, D.K. Cooley, to the defendant, T.D. Cooley, and for the appointment of a receiver of the property and assets of the said firm of Allen Cooley. The decree of the Circuit Court which, with the exceptions thereto, is reported herewith, sets aside said sale as fraudulent, and appoints L.W. Perrin, the master of Abbeville County, as receiver. The questions raised for our consideration by the exceptions will be responded to in a somewhat general way, without considering the exceptions in detail or in their order.

1. The Court properly overruled the motion to strike out of the complaint as irrelevant and redundant the following matters: (a) The third and fourth sentences of paragraph 8 (6?) of the complaint; (b) the second sentence of paragraph 7 of the complaint; (c) the ninth paragraph of the complaint; (d) the eleventh paragraph thereof; (e) the twelfth paragraph thereof; (f) the thirteenth paragraph thereof; (g) the fifteenth paragraph thereof down to sentence beginning "that irreparable loss." These matters were directly or remotely relevant to the matter sought to be established, a fraudulent transfer of property. We do not think that the motion to strike out was waived by the service on the same day but subsequently of the answer. Whaley v. Lawton, 53 S.C. 580. The answer in this case did not, as in Whaley v. Lawton, supra, expressly reverse the right to so move, but there is nothing inconsistent in entertaining after answer a motion to strike out irrelevant or redundant matter, the motion having been duly noticed before answering, as in this case. The Circuit Court did not decline to hear the motion on the ground of waiver but decided it upon its merits.

2. The demurrer to the complaint for failure to state a cause of action was correctly overruled. The written demurrer was based upon the following grounds:

"I. That it does not allege that the plaintiff has any debt against D.K. Cooley that is due, but, on the contrary, alleges that the debt is not due and will not be due until next November, and does not allege that the plaintiff is a creditor of the firm.

"II. That it does not allege that this defendant is indebted to the plaintiff or to the firm of Allen Cooley.

"III. That it does not allege that at the time of the sale of said stock of goods or at the time of the giving of said mortgage, the said Thomas D. Cooley was a creditor of said firm of Allen Cooley, or either of them, and, therefore, states no cause of action under the assignment act of this State.

"IV. That it does not allege that either the defendant. D. K. Cooley, is insolvent or that this defendant is insolvent, but, on the contrary, shows that D.K. Cooley is abundantly able to meet any judgment which may be rendered against him.

"V. That it does not state that any creditor has attempted or is about to attempt to make any money out of the said plaintiff, or that there is any immediate danger of his having any of them to pay.

"VI. Because the complaint shows on its face, that the partnership heretofore existing between the plaintiff and D. K. Cooley has been dissolved by mutual consent, an account stated and agreed to, and that the plaintiff has received his full share of the partnership assets and has no longer any interest in said business.

"VII. Because the complaint does not state any facts sufficient to warrant the appointment of a receiver or the granting of an injunction, in that it fails to state that the plaintiff has any right to any of the property mentioned in the complaint, or that the defendant is selling or making way with any of said property so as to injure plaintiff during the litigation."

These objections to the complaint were all disposed of against appellant in the former decision of the Court in this case, reported in 53 S.C. at page 442.

The further ground interposed at the trial, that the complaint does not state any facts tending to show that the sale of goods made to T.D. Cooley by D.K. Cooley was fraudulent, pretensive and without consideration, could not be sustained, as an inspection of the complaint will show.

3. The third exception assigns error in failing to consider the defense set up in the pleadings, that the K.W. Allen judgment was fraudulent and void. We do not see that any such issue was raised in the pleadings. It is true, that the eighth paragraph of the complaint alleges that Mrs. K.W. Allen obtained a judgment against Allen Cooley, and the seventh paragraph of the answer denies the same. If defendants' denial were true, it would not effect the judgment rendered in this case. But it appears by the case of Allen v. Cooley, 53 S.C. 77, that Mrs. K.W. Allen obtained a judgment against D.K. Cooley on a note to her by Allen Cooley, it being therein established that said note was a debt of the firm of Allen Cooley, and that D.K. Cooley assumed the payment thereof when the firm of Allen Cooley was dissolved. The question settled in that case could not be reopened in this case by showing, as was attempted, that no such note as sued on in that case was in fact executed by Allen Cooley.

4. We have examined with care the evidence in this case, and we do not find that the conclusions of fact by the Circuit Court are against the preponderance of the evidence, and we, therefore, affirm such findings of fact. We, therefore, overrule the fourth, sixth, seventh, eighth, ninth and tenth exceptions. Such being the facts, it was not error of law to set aside the sale as fraudulent and appoint a receiver.

5. Under the authority of Kilgore v. Hair, 19 S.C. 486, we think it was not proper to appoint the master of the Court as receiver, and the case will, therefore, be remanded, with instructions to appoint some other suitable person as receiver.

6. The fifth exception contends that it was error, after setting aside the sale of the stock of goods, not to provide for refunding to Thomas D. Cooley money paid by him under order of the Court to the master in settlement of two notes given by D.K. Cooley to B.B. Allen and indorsed by Thomas D. Cooley. The Circuit Court, perhaps, did not deem it proper to consider such matter, and, therefore, gave no opinion thereon. There may be some merit in appellants' contention in this regard, but as it has not been considered by the Circuit Court, we will not decide the question. We will, therefore, hold that T.D. Cooley is not to be prejudiced in regard to this matter by the judgment herein, but that whatever right he may have to a refund of said money may be tested by a proper issue made hereafter in the subsequent proceedings herein.

The judgment of the Circuit Court is modified in the particular mentioned, and the case remanded, with instruction to appoint some suitable person as receiver in place of the master of Abbeville County, but in all other respects it is affirmed.