Allnutt v. Leper

48 Mo. 319

• Court: Supreme Court of Missouri
• Decided: August 15, 1871
• Status: Published

Opinion

Bliss, Judge,

delivered the opinion of the court.

The petition charges that the plaintiff, in 1860, recovered a judgment against James Craig, deceased, for some $20,000;' that without consideration, and to defraud plaintiff, the said Craig in his lifetime conveyed his real estate to certain of the defendants; that in 1867 he died, and one of the defendants,' Norman J. Bliss, is his administrator; and prays that the property may be sold and the proceeds applied to the payment of the plaintiff’s said judgment. The defendants jointly demur to the petition and specify the grounds of demurrer, to-wit; 1st, because the petition does not allege facts showing a lien or title in the plaintiff to the real estate covered by the conveyance; 2d, Craig having died before execution and after the expiration of the judgment lien, the plaintiff has no equity; 3d, the administrator of Craig is not a proper party. The demurrer was sustained by the Circuit Court, and judgment was entered upon it. I have given the grounds of the demurrer because, although the petition seems tobe defective, it is not so, for the reasons named, and the court committed error in sustaining the demurrer. The statute is imperative that “ the demurrer shall distinctly specify the grounds of objection to the pleadings” (Wagn. Stat. 1015; Gen. Stat. 1865, ch. 165, § 7), and, when they are s.o specified, the court will not fake notice of other defects, especially when the pleading can probably be amended so as to make a case or avoid the defect. (Cheely’s Adm’r v. Wells, 33 Mo. 106; Loomis v. Tifft, 16 Barb. 541. ) The first and second grounds of objection are substantially the same, and the pleader seems to suppose that there must be a specific judgment lien in order to sustain a creditor’s bill. Judges have sometimes so remarked, but the subject was considered by us in Glenny v. Freeman, 44 Mo. 518, and it was Held that though such lien is usually an incident, it is not essential to the plaintiff’s equity. Upon the third ground of objection it is only necessary to say that if a person is improperly brought into court, and is not a necessary party to the proceedings, he alone can object to it. The other parties have no interest in the question, and if they join in the demurrer it should be overruled as to them. (Ashby v. Winston, 26 Mo. 210; State Bank v. Paris, 35 Mo. 371; Ancell v. Cape Girardeau, ante, p. 80.) It does not appear from the petition that the plaintiff has exhausted his remedies at law. It is not shown that he has taken any steps to recover his debt of the administrator, or that he has established it against the estate. He must pursue his ordinary legal remedies before he can ask us to set aside the conveyance of the deceased.

The judgment will be reversed and the cause remanded, that the plaintiff, if he desires, may amend his petition.

The other judges concur.