The record-union., 1891-01-21
SUPREME COURT DECISIONS.

tFiled, January 6, 1911
Appeal from Superior Court, Nevada
County,. NJ. WalIing, Judge.
For appellant, George 4. Rankin of counsel,
T. c. Coogan.
For respondent, Cross & simonds.
IN BANK.
e. G. SUKEFoETH, Respondent,l
VS.. mo. 1865.
GRO. LoRDD, Appellant.
This is an action TO recover damages on ac-
count of the seizure by defendant under n
writ of attachment of certain goods, claimed
by the plaintiff The case arose under the fol-
lowing circumstances:
On the 18th of August, 1883. l.. NJ.
Sukeforth, who for number of years there
tofore had carried on a certain carpet business
at Nevada City, being largely indebted and in
solvent, sold, transferred, and delivered TO the
plaintiff-who is his brother-for nominal
consideration of 81, 800 his entire stock in
trade, all his outstanding bills and accounts
and all other property, exempt from eXecu-
ton, which he then possessed. Among his
creditors at the time of this transfer were
Sloan q Company, wholesale carpet dealers,
who caused suit to be instituted upon their
claim. and in said suit caused an attachment
TO be issued which was levied by the defend
ant, as Sheriff of Nevada County, on the stock
of carpets, etc. then in the possession of the
plaintiff, and claimed by him as yendec of
his brother. Thereupon this action was COM
menced against the Sheriff, who defends upon
the ground that the sale from l.. Nj. SUkeforth
to the plaintiff was fraudulent and void as TO
creditors.
Inc case was JtleU Dy Il jury VINO IOullU lOr
the plaintiff, and the defendant appeals from
the Judgment and from an order denying his
motion for a new trial.
AT the trial in the Superior Court all ques-
tions of fact were eliminated from the case by
the mutual admissions of counsel except the
single one of fraud in the sale and all the as
SignmentS of error which we are asked to con-
slider relate exclusively TO that matter.
A preliminary objection is made by the re-
spondent to any consideration of the errors
assigned upon the ground that the answer of
the defendant insufficient TO raise the
issue of fraud.
The allegations of the answer upon this
point are as follows:
THAT the defendant is informed and be-
lieves, and upon such information and belief
soavers the fact to be. that on or about the said
10Th day of August, 1888, while said l.. NJ.
Sukeforth was so as aforesaid engaged in bust
ness and while he was so aforesaid indebted.
he, said l., NJ. Sukeforth, and the plaintiff,
who is his brother, conspired together for the
purpose and with the intent to hinder, delay
and defraud the creditors of said L. NJ. SuiSc-
forth out of their just debts and demands
against him, said l.. NJ Sukeiorth: and with
such purpose and intent the said L. N. Suke-
worth made q pretended, false and fraudulent
sale OF the property, mentioned in plaintiffs
complaint and of all other property save such
as is by law exempt from execution, owned by
said L. NJ. Su5eiorth to the plaintiff and with
such purpose ana intent the said plaintiff re-
ceived said pretended false and fraudulent
conveyance; and thereupon said plaintiff
took possession of said property and SO held
the same, and not otherwise"
If there had been demurrer to the answer
II would probably be held on the authority of
Pershon VS.. Hewitt, 70 Cal, 59S. and other
eases cited by respondent, that these allega-
tions were insufficient as plea of fraud. Or
II evidence tending to prove the supposed
fraud had been objected 10 at the trial upon
the ground of immater;ality the objection
would probably have been sustained unless the
answer had been amended.
But there was no demurrer to the answer
and at the trial evidence was offered and ad-
mitted without any objection whatever,
which tended in the strongest manner to es-
tablish every fact necessary to invaiidate the
sale on the ground of fraud.
The question therefore is whether q party
who has treated an answer containing IL gene
raj allegation of fraud as sufficient to raise the
issue by going into trial of all the questions
involved without any objection, can make the
point here for the first time that there is no
such issue in the case.
We think there can be no manner of doubt
that If the verdict and Judgment in this case
had been in favor of the defendant and the
plaintiff had been appealing he would not
have been heard to allege the defect in the an
swer. which he relies on here to prevent a con-
sideration of the errors assigned by the defend
ant.
In King VS.. Davis, 81 Cal JOG. the plaintiffs
were appealing and in this court objected to
the answer on precisely the ground taken by
the respondent here But the court said: .sThe
point made by the appellant that the answer
does not make an issue of fraud cannot be con-
sidered by us further than to say that it comes
too late. The answer contains II general allie
CATION OF fraud, and the appellant went to trial
upon the issue thus joined without making
any exception TO the answer on the score of iu-
sutticiency. Nor was any objection made by
the appellant TO the testimony introduced by
the respondent in support of the issue of fraud
On the contrary, that issue was assumed to
have been properly made and was tried upon
its merits. Under these circumstances an OBJ
lection to the answer that it does not contain
statementof the particular facts and cifcum-
stances constituting the alleged fraud cannot
be entertained by us.n
This proposition, that the failure to allege
the particular facts constituting fraud or
GStODDel. other special GpfenSpS nlpaGpu N
general terms, may be waived by failure to
demur, or to object to the evidence offered at
the trial, has been affirmed over and over again
in q long series of cases running through our
reports from the first volume down to the case
OF Hughes VS.. Wheeler 76 Cal. 23O.
We refer to the following among many
others: tJee VS.. Figg, 3. Cal. 335; Hutchngs
+, vs.. Castle, 4S Cal. 155; Bull vs. Ford, Sc Cal.
176l
Against this long list of cases is cited the re-
cent decision of Department One of this court
in Albertoli VS.. BranhaIn, 80 Cal 6ti:S which
Is supposed to establish Il different doctrine
If that case could not be distinguished from
this ii would be sufficient to see that it is not
law. a decision of one department OF this court
cannot be held to have overruled a long line
OF cases decided by the whole court especially
when they are not even named or otherwise
referred to in the department decision, and
were evidently not considered.
But the truth Is, that case differed from this