DAY V. WASHBURN, 64 U. S. 309 (1859)

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U.S. Supreme Court

Day v. Washburn, 64 U.S. 23 How. 309 309 (1859)

ct:Day v. Washburn, 64 U.S. (23 How.) 309 (1859)

�Day v. Washburn

�64 U.S. (23 How.) 309




Where a motion was made to dismiss an appeal upon the ground that the appeal was taken by part only of the complainants below, and that the other complainants had not been made and were not parties to the appeal, and it appeared from the record that a fund had been decreed by the court below to be distributed ratably amongst two classes of creditors, one of which was composed o� judgment creditors, and the other of those who had come in after the filing of a creditor's bill, and the first class only conceived themselves aggrieved by the decree admitting the others to a ratable proportion, and therefore became the appellants, this Court will, in such a state of things, refuse the motion to dismiss and reverse this, together with all other points to be decided, when the case shall come up for argument hereafter.

A motion was made by Albert G. Porter as amicus curiae to dismiss the appeal because the appeal was taken by part only of the complainants below, and that the other complainants have not been made and are not parties to said appeal.

Page 64 U. S. 310

MR. JUSTICE WAYNE delivered the opinion of the Court.

Albert G. Porter Esquire, a counselor of this Court, and who was concerned as counsel in the court below for certain petitioners, claiming an interest in the matter in controversy adversely to the appellants, asked to be permitted, as amicus curiae, to move for the dismissal of this appeal, alleging for cause that it had been irregularly brought to this Court in this particular, that the appeal had been taken only by a part of the complainants, and that such of them as had been omitted were not parties to the appeal.

The record discloses the following facts:

The appellants filed in the circuit court a bill to set aside, as fraudulent, a conveyance of property and to subject it to the payment of their claims against William A. Washburn, and associated with him as a defendant John A. Keith, the grantee of the conveyance. The bill was separately answered by Washburn and Keith, and proceedings were had in the case until at December Term in 1858, the issue was made up, upon bill, answer, replication, and exhibits. At that term of

Page 64 U. S. 311

the Court, December 21, 1858, a number of persons, claiming also to be creditors of Washburn, filed a petition by their counsel, Hall, McDonald, and Porter praying to be made parties to the bill, as complainants, and to be permitted to share in such distribution as might be made out of the property charged to have been fraudulently conveyed by Washburn to Keith in the event of the court's decreeing that it had been so done, and that it was liable for the payment of Washburn's creditors. The court directed these petitioners to be made parties to the bill of the appellants, as complainants, and under that order the decree now appealed from was made.

But before the decree was rendered, the cause was referred to a master to report the sums due to the creditors, as they were then appearing to be so in the original bill and other proceedings of the cause. It was done. Subsequently a decree was rendered declaring Washburn's conveyance to Keith void and fraudulent. In consequence of it, a large sum was made out of the property and deposited in court for distribution. And the court decreed that it should be ratable distributed between the appellants and those other creditors of Washburn who by its orders had been made parties to the original bill. It is from this decree that the appellants have brought the case to this Court. They had insisted, before the court rendered its decree, that, being the original complainants, they were entitled to have their claims paid in full, and that the remainder of the fund might then be distributed, in the discretion of the court, pro rata amongst the other creditors of Washburn. But the court overruled the motion and ordered the money to be paid ratably to the creditors. It is from this decision and decree that this appeal has been brought, so as to have it decided whether, in the particular just mentioned, it is not erroneous.

It also appears that the appellants were judgment creditors of Washburn when they filed their bill to set aside his deed to Keith, and that the other creditors who have been made participants in the fund to be distributed are not so. And we gather from the proceedings in the cause that their application to be made parties to the original bill was with the view

Page 64 U. S. 312

to defeat the appellants of any legal or equitable priority which they may have acquired for the payment of their claims over the other creditors, either from their being judgment creditors or from their vigilance in first filing a bill to set aside the conveyance from Washburn to Keith. We do not mean now to decide those points upon this motion, nor any other point connected with the merits of this controversy. All such points will claim the attention of the Court upon the argument of the case hereafter. The record also suggests an inquiry whether those persons who were made parties to the original bill, and who have become by the decree of the court participants in the fund to be distributed, were necessary parties to the bill or were allowably so, in their then attitude in respect to their claims against Washburn. And in no other way can the question of right between themselves and these appellants in the fund be reached, for the former, having accomplished their purpose, for which they were made parties, are neither willing to appeal from the decree nor to be considered as parties to this appeal.

The record, indeed, suggests many points connected with the real merits of the controversy, and others in respect to proper pleadings in equity, which cannot be considered and determined upon a motion to dismiss the appeal summarily for any irregularities in the process by which it has been brought to this Court. We therefore refuse the motion for the dismission of the appeal, allowing it, however, to be brought to the notice of the Court again when the case shall be argued upon its merits.

This course has often been taken by this Court upon a motion to dismiss a case for irregularities in the appeal or writ of error similarly circumstanced as this is.

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