"{\"id\": \"2264334\", \"name\": \"BENNETT v. MINOTT\", \"name_abbreviation\": \"Bennett v. Minott\", \"decision_date\": \"1896-03-23\", \"docket_number\": \"\", \"first_page\": \"339\", \"last_page\": \"350\", \"citations\": \"28 Or. 339\", \"volume\": \"28\", \"reporter\": \"Oregon Reports\", \"court\": \"Oregon Supreme Court\", \"jurisdiction\": \"Oregon\", \"last_updated\": \"2021-08-10T23:03:31.916699+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BENNETT v. MINOTT.\", \"head_matter\": \"Decided March 23, 1896;\\nrehearing denied.\\nBENNETT v. MINOTT.\\n[39 Pac. 997; 44 Pac. 283.]\\n1. Service op Notice op Appeal \\u2014 Presumption.\\u2014Where nothing appears in the record to show the residence of respondent\\u2019s attorney it will be presumed that he resides iu the county where the trial was had, (Roy v. Horsley, 6 Or. 270, approved and followed,) and that his admission of service of a notice of appeal was there made.\\n2. Adverse Parties \\u2014 Service op Notice op Appeal.\\u2014 The grantor in a conveyance of property claimed to be fraudulent as to creditors is not a. necessary party to a suit to set aside such conveyance, and, as his interest cannot be affected by the result, he is not an \\u201c adverse party,\\u201d and the notice of appeal need not be served on him: The Victorian, 24 Or. 141, cited.\\n3. Pleading \\u2014 Waiver op Objections. \\u2014 An objection to a complaint for uncertainty or indeiiniteness comes too late after judgment.\\n4. Creditor\\u2019s Bill \\u2014 Judgment not Necessary.\\u2014 A creditor need not reduce his claim to judgment before filing a creditor\\u2019s bill to reach assets of his debtor which have been transferred in fraud of creditors, a lien by attachment being sufficient: Dawson v. Sims, 14 Or. 501, approved and followed.\\n5. Creditor\\u2019s Bill \\u2014 Fraudulent Transfer.\\u2014 Where a debtor, for the purpose of hindering and delaying creditors, organizes a corporation and transfers to it all his assets, he himself being the owner of practically all the corporate stock, and continuing the business the same after as before the incorporation, using the proceeds for his own ben efit, equity will set aside sucli transfer at the instance of creditors, notwithstanding the incorporation is valid, and the corporate stock subscribed by the debtor is subject to sale under execution. Under such circumstances a court of equity will look beyond the legal forms, and decide the case on the rights of the parties.\\nAppeal from Coos: J. C. Fullerton, Judge.\\nThis is a proceeding by Sandford Bennett in the nature of a creditor\\u2019s bill to subject to the payment of his claim certain property alleged to have been transferred by the defendant T. S. Minott to his codefendants the Coos Bay Hardware Company, a corporation, and to Lizzie H. Minott, for the purpose of hindering, delaying,' and defrauding creditors. From the pleadings and evidence it appears that from the first day of August, eighteen hundred and ninety, to the eleventh day of June, eighteen hundred and ninety-two, Minott was engaged in the hardware business at Marshfield, in this state, and during that time became largely indebted to plaintiff and his assignors, and .to defendants Hester, May and Company, D. M. Osborne and Company, and other wholesale merchants, for goods sold and delivered to him. While being pressed by his creditors, he, on the latter date, caused the formation of said corporation, with a nominal capital of thirty thousand dollars, divided into three hundred shares of the par value of one hundred dollars each, of which he subscribed for one hundred and twenty shares, his wife for forty, and his attorney and a friend for one each. The corporation was subsequently organized, and Minott was elected president, general manager, and treasurer, under a contract to serve for one year at a salary of one hundred and fifty dollars per month. He thereupon assigned and transferred to the corporation his business and stock of hardware, which was substantially all the property he owned not ex erupt from execution, at a valuation of about twelve thousand dollars, in payment for the shares of stock subscribed by him. In this transaction he acted both for himself as an individual and for the corporation of which he was president, general manager, and treasurer, and substantially the owner. About thirty days after the formation of the corporation he assigned and transferred to his wife, the defendant Lizzie H. Minott, all his shares in the corporation, except nine, in payment of a debt he claimed to owe her. He thereafter proceeded to cLo business substantially as before, but under the name of the corporation, selling and disposing of the goods, and applying the proceeds thereof to his own individual use. His creditors being unable to effect a satisfactory settlement with him, the defendants Hexter, May and Company, in August, eighteen hundred and ninety-two, attached a part of the stock of goods transferred by Minott to the hardware company, and on September sixth another part was attached, by the defendants B. M. Osborne and Company, each of whom afterwards recovered judgment against Minott, containing an order of sale of the attached property. On September twenty-second, eighteen hundred and ninety-two, Baker and Hamilton duly recovered a judgment against him for two hundred and thirty-one dollars and ninety-five cents, upon which an execution was subsequently issued and \\\"returned nulla bona. On October twenty-second, plaintiff, for himself and as assignee of a large number of the other creditors, commenced an action and had the entire stock of goods in the possession of the hardware company attached as the property of Minott. Based upon said attachment and the judgment in favor of Baker and Hamilton, which was duly assigned to him. the plaintiff instituted this suit to set aside the transfer of the stock of goods from Minott to the hardware company, and to subject it to the payment of his demands, together with two lots in Dean\\u2019s Addition to Marshfield, which had previously been purchased by Minott, and upon his direction conveyed to his wife. A receiver was appointed, and the merchandise sold by him under the order of the court, and the proceeds thereof now await distribution. The case was after-wards tried, and a decree rendered adjudging the sale of the stock of goods by Minott to the corporation to be void as to creditors, but holding that there was no fraud as to plaintiff in the matter of the purchase of the lots in Dean\\u2019s Addition, and decreeing that the money in the hands of the receiver be applied,- \\u2014 first, to satisfy the costs and expenses of the suit; second, to the discharge of the judgments of Tlexter, May and Company and D. M. Osborne and Company; third, to the satisfaction of the judgment recovered by the plaintiff in the action wherein he caused said goods to be attached; and, fourth, to the payment of the judgments in favor of the Bridge and Beach Manufacturing Company and Baker and Hamilton. From this decree the hardware company and the plaintiff both appeal, but Minott and his wife are not made parties.\\nAffirmed.\\nFor appellant there was a brief and an oral argument by Mr. William R. Willis.\\nFor respondents there were briefs by Messrs. Cox, Cotton, Teal and Minor, J. W. Bennett, and D. L, Watson, with oral arguments by Messrs. Bennett and Wirt Minor\\u201e\\n[39 Pac. 997.]\", \"word_count\": \"3369\", \"char_count\": \"19539\", \"text\": \"On Motion to Dismiss Appeal.\\nPer Curiam.\\nThe notice of appeal was filed August thirtieth, eighteen hundred and ninety-four, and the proof of service indorsed thereon is as follows: \\\"Due service and receipt of a copy hereof admitted after filing this twenty-eighth day of August, eighteen hundred and -ninety-four. J. W. Bennett, attorney for plaintiff.\\\" It is contended (1) that the indorsement does not show the place of service; and (2) that T. S. Minott and Lizzie H. Minott are adverse and therefore necessary parties to the appeal.\\nThe service of a notice of appeal may be made either upon the party or upon his attorney of record residing in the county where the trial was had; but when the attorney resides outside of such county the service can be made only upon the adverse party: Lindley v. Wallis, 2 Or. 203; Rees v. Rees, 7 Or. 78; Lewis and Dryden Printing Company v. Reeves, 26 Or. 445 (38 Pac. 622). The proof of service of a notice of appeal may be made by the sheriff of the county, (Hill's Code, \\u00a7 54, 527,) or by the written admission of the adverse party, but in case of service by the latter method, the admission must state the time and place of service, (Code, \\u00a761,) which must be indorsed on the notice \\u2022when filed, or the appeal is not perfected: Briney v. Starr, 6 Or. 207. The admission of the service of a summons must show the time and place of service, otherwise no advantage could be taken of the defendant's default in failing to answer. But the place of service of a notice of appeal is, in general, not required to be specifically set forth, although it is otherwise as to time: Elliott on Appellate Procedure, \\u00a7 179. The transcript shows that J. W. Bennett was the attorney for the plaintiff in the trial of the suit in Coos County, and nothing appearing to the contrary, it will be presumed that he was a resident of the county in which he appeared as counsel, (Roy v. Horsley, 6 Or. 270,) and that he acknowledged service of the notice of appeal where the papers show the venue to be laid: Elliott on Appellate Procedure, \\u00a7 179. The place of service not having been stated, it will, therefore, be presumed to have been in Coos County.\\nThe defendants, T. S. Minott \\u2022 and Lizzie H. Minott, though proper were not necessary parties to the suit. Neither of them has any interest either legal or equitable in the property, and neither could be prejudiced by the decree which the plaintiff seeks to obtain: Blanc v. Paymaster Mining Company, 95 Cal. 524 (29 Am. St. Rep. 149, 30 Pac. 765); Fox v. Moyer, 54 N. Y. 130; Potter v. Phillips, 44 Iowa, 353; Coffey v. Nor-wood, 81 Ala. 512 (8 So. 199); United States v. Church of Latter-Day Saints, 5 Utah, 538 (18 Pac. 35); Bailey v. Inglee, 2 Paige, 278; Pfister v. Dascey, 65 Cal. 403 (4 Pac. 393). In a suit to set aside a deed alleged to have been fraudulently executed the plaintiff may, though not necessary, elect to make the grantors thereof parties, and having done so a demurrer will not lie for misjoinder: Pfister v. Dascey, 65 Cal. 403 (4 Pac. 393). The defendants T. S. Minott and Lizzie H. Minott not being necessary parties their interests cannot be adverse to or in conflict with those of the appellant: The Victorian, 24 Or. 121 (41 Am. St. Rep. 838, 32.Pac. 1040). As between them and the Coos Bay Hardware Company, the transfer of the stock of goods was complete, and none but their creditors could question the transaction. It follows that the motion to dismiss the appeal must be denied, and it is so ordered.\\nOverruled.\\n[44 Pac. 283.]\"}"