Board of Directors v. Lowrance

97 S.E. 830, 111 S.C. 295, 1919 S.C. LEXIS 6

Opinion

The opinion of the Court was delivered by

Mr. Chirr Justice Gary.

This is an action to set aside certain conveyances for fraud.

1 The appeal is from an order overruling a demurrer to the complaint, on the grounds stated in the exceptions, which will be reported. A complaint is not subject to demurrer if it contains allegations entitling the plaintiff to relief, either on the law or the equity side of the Court.

The principal ground upon which, it seems, the defendants rely, is that the plaintiff has not exhausted its legal remedies, as there are no allegations in the complaint to the effect that there has been a return of nulla bona.

The authorities cited in the argument of the respondent’s attorneys show that the exceptions raising this ques-lion cannot be sustained.

The objection to the complaint, on the ground that there is another action pending between the same parties, for the same cause, must be overruled, for the reason that it appears upon the face thereof that they are not the same.

2 The objection to the complaint on the ground that 'the plaintiff has not legal capacity to sue, and that the trustee in bankruptcy is the only proper party to bring such action, cannot be sustained, for the reason that the proceedings in bankruptcy do not prevent an action in the State Courts to set aside fraudulent transactions on the part of the bankrupt. Pickens v. Roy, 187 U. S. 177, 23 Sup. Ct. 78, 47 L. Ed. 128; Metcalf v. Barker, 187 U. S. 165, 23 Sup. Ct. 67, 47 L. Ed. 122; Bardes v. Hawarden Bank, 178 U. S. 524, 20 Sup. Ct. 1000, 44 L. Ed. 1175.

Even if the proceedings in bankruptcy could be regarded as in the nature of an action in the Federal Court, the State Court in this case would have jurisdiction to determine the issues. Hill v. Hill, 51 S. C. 134, 28 S. E. 309; Mayfield v. Ry., 79 S. C. 558, 61 S. E. 106; Logan v. Ry., 82 S. C. 518, 64 S. E. 515.

Affirmed.