Burden v. Burden

Mr. Justice Dibell

delivered the opinion of the court.

For ten years prior to May, 1910, a mercantile business was carried on at Tampico in Whiteside county under the name of The Charles Burden Company. William Burden was one partner and a half owner. He claimed that his brother Charles was his partner, but Kate Burden, wife of Charles, had asserted that she was the partner, and she had signed many partnership papers. William Burden gave no time to the business. His wife Margaret kept the books. Charles conducted the business. His wife Kate owned the building in which the business was conducted, and had raised, by mortgage on a farm owned by her, the.money which went to make up the other half of the capital of the corporation. Disagreements arose and William filed a bill against Charles and Kate to have the partnership dissolved, the remaining goods sold, the book accounts and notes due the firm collected, the firm debts paid and one-half of the remaining assets paid to himself. He did not seek an adjudication as to whether Charles or Kate owned the other half of the property, but made them both defendants, so that they might be bound by the settlement made in the case. A receiver, was appointed and the affairs of the partnership were wound up, and a stipulation was signed, disposing* of various matters of controversy. At this stage of the ease, Joseph E. Erbland, claiming to have recovered a judgment in the Circuit Court, of Woodford county in 1897 against Charles Burden, and to have had an unsatisfied execution thereon, and to have obtained a revival of said judgment in 1908 and1 an execution thereon, returned unsatisfied, and alleging confederacy and fraud between Charles and Kate Burden to prevent Erbland from collecting his judgment, and alleging that the store and the property therein was owned by Charles Burden, obtained leave to file and filed an intervening petition,' seeking to make his judgment out of the alleged interest of Charles Burden in the partnership property and in the rents for the store building. The court ordered a certain sum retained by the receiver until a decision under the petition. After answer, this matter was heard by the master, who took and reported proofs with his conclusions adverse to the petitioner. On objections to his report, an additional report was made, finding that the court was without jurisdiction to entertain the subject-matter of said petition. The court dismissed the petition and the intervener appeals.

We are of opinion that this petition was not germane to the litigation then before the court. William Burden did not claim to own the store building, and its ownership was not involved in that suit. William had no interest in. the question whether Charles or Kate had the other half interest in the business. He was only interested in having the partnership affairs wound up, the various disputed .questions disposed of by decree, and to get his half of the final assets, and to have Kate and Charles both parties to the suit so that they should both be bound by the result. There was involved in that litigation no question whether Charles and Kate had conspired together to defeat the creditors of Charles or whether the property standing in the name of Kate was originally derived from the estate of the deceased father of Charles, as the intervener claimed, nor whether she acquired such property from the estate of the deceased father in such a way that creditors of Charles ought in equity to have resort thereto for the payment of their claims. The judgment of the intervener had no connection with the partnership business. It was obtained several years before the partnership was formed. If this intervention can be maintained, then any other creditor of Charles or William or Kate may come in and file an intervening petition and.have many other questions tried. Indeed, it appears that Margaret, the wife of William, supplied some of the money which her husband put into the business, and creditors of Margaret might come in and intervene and make her a party and seek to collect their claims out of the share ordered paid to William.

But petitioner claims that the defendants did not raise this question sufficiently in the court below. Defendants excepted to the order allowing the intervening petition to be filed. Later, at the same term of court, they entered a motion to vacate the order allowing said petition to be filed, on the ground that the court was without jurisdiction to enter such an order in said cause. They filed objections to the master’s report, although it was in their favor, on the ground that the intervener had an adequate remedy at law, had no standing in a court of equity, and that a court of equity was without jurisdiction. We are of opinion that the lack of jurisdiction of the court in this cause was sufficiently raised, and also that, if it had not been raised, it was at least the privilege of the court of its own motion to refuse to permit the pending cause to be hampered by this litigation introduced by the intervener.

But it is suggested that the money was in the hands of the receiver and he could not be made a party to an original creditor’s bill, and therefore petitioner had a right'to this intervention. Erbland would have been required to apply to the court for leave to make the receiver a party defendant to such a creditor’s bill, but we must assume that if a proper showing had been made, such leave would have been granted.

It is a serious question under the proofs whether this judgment was ever lawfully revived, and whether Erbland can, under the proofs, reach any of the money in the hands of the receiver from which to pay a judgment against Charles Burden. But we leave these questions undetermined, so that if a creditor’s bill shall be filed, its progress will not be hampered by any decision thereof in this case.

The decree dismissing the intervening petition is affirmed.

Affirmed.