Billhofer v. Heubach

I. Undoubtedly, to entitle creditors to set aside any disposition of property, fraudulently •or illegally made by their debtors, they must have a lien upon the specific property. Therefore, where a judgment is recovered against joint-debtors upon service of process on any fewer than the whole, and where, consequently, an execution can be issued only against the joint property of all, or against the separate property of those wbo have been served, an action in the nature of a creditor’s bill cannot be maintained to interfere with any disposition of the separate property of those who have not been served. In the present case the object of the action is to set aside the alleged fraudulent disposition of the joint property *147of the defendants. Against this, the plaintiffs, having recovered a judgment which entitled them to an execution against the joint property of all the defendants in the judgment, would have a lien on the property in question, had not the alleged fraudulent disposition of it been madel They do not seek any interposition of the court in relation to the separate property of the defendants not served. The decision of the special term was, therefore, correct in maintaining the right of the plaintiffs to impeach the sale of the joint property.

II. The counsel of the defendant Henry Heubach maintains that no judgment could be rendered in this action until Victor and Alfred Heubach are served with process. I do not perceive that this objection was taken at the trial. But, if it was, I think it would have been ineffectual. The second subdivision of section 136 of the Code provides, “ if the action be against defendants severally liable, the plaintiff may proceed against the defendants served in the same manner as if they were the only defendants.” I do not see the necessity of restricting this provision to common-law actions on contracts. This is an action to enforce a judgment founded upon a contract; and, if Henry Heubach has obtained possession of the property of Victor and Alfred Heubach, he is liable to respond in this action, and is at liberty to show separately that he is lawfully in possession of it.

It is not necessary to notice the remaining objections; they are all untenable.

The judgment should be affirmed, with costs.

Ingbaham, P. J., and Leonabd, J., concurred.