E. C. Meacham Arms Co. v. Swarts

Opinion by

Wingard, Associate Justice.

The appellants brought an action in the District Court (4th District) against Emanuel L. Swarts, and an attachment was issued and levied upon his stock in trade at Spokane Falls, Spokane County, Washington Territory.

Swarts had previously executed and delivered to his wife, Elizabeth L., a chattel mortgage purporting to cover all his propcrty, and said Elizabeth L. had commenced proceedings to foreclose said chattel mortgage, when the attachment was levied. The sheriff was in possession of the mortgaged property.

Appellants applied to the District Court, and obtained an injunction, restraining the mortgagee, sheriff, and all others from foreclosing said mortgage, and setting up that the mortgage was fraudulent and void, without consideration, for the use and benefit of the mortgagor, and that it was a scheme and contrivance entered into between Swarts and his wife, to hinder, delay and defraud his creditors ; that the property mortgaged was all the property owned by Swarts, and that if the same was sold ■upon foreclosure, the appellants would be without remedy to collect their claim ; and they prayed that the injunction be made perpetual, and the mortgage be declared void and not a lien. Separate answers were filed by the appellees, but both, either by express admission or a failure to deny, admit the making and attempt to foreclose the mortgage — admit the attachment by plaintiffs — admit the debt due from Swarts to them, and that he had no other property subject to execution, as set forth in the complaint.

Strong, Hackett & Co. consented to be made parties plaintiff, and it was so ordered by the Court.

When the cause came on for hearing, the appellants moved for judgment on the pleadings, which motion was overruled.

The appellees then moved to have the bill dismissed; whereupon the plaintiffs below asked leave to file a supplemental bill, alleging that since the filing of the original bill they had prosecuted their suit to final judgment. This leave was denied by the District Court.

The bill was then dismissed by the Court, to which action of the Court the appellants excepted.

It is contended by the appellees that the bill for injunction, etc., being a suit in equity, could not be maintained, to set aside a fraudulent mortgage by an attaching creditor before judgment.

We think the appellants had a right to file the supplemental complaint, which they asked leave to file, under Sec. 114, Code of this Territory; and had this been done, the contention of the appellees in this regard would have been eliminated. Moreover, the jurisdiction of the District Court to entertain, the bill for injunction is expressly given 'by Section 1997 of the Code. ■“ Fraud is one of the primary subjects of equity jurisdiction.” Equity does that which right, and reason, and good faith, and good conscience demand in the case.

If the appellants, in such a case as this should be obliged to await their judgment at law, the law would furnish no adequate remedy, reason would be disregarded and right annulled. (Kalno v. Solomon, 20 Fed. Reporter, 801; Rolent v. Hodges, 16 N. Jersey, 299; Hayneman v. Dannenburg, 6 Cal. 376, 380; 33 Texas, 316; 55 U. S. (14 Howard), 314; Drake on Attachment, Sec. 225; Bump on Fraudulent Conveyances, 524; Williams v. Michenor, 11 N. Jersey, 520.)

Let the judgment of the District Court be reversed, and the ■cause remanded for further proceedings.

We concur: Roger S. Greene, Chief Justice.

John P. Hoyt, Associate Justice.