McAlvay, C. J.
This is an appeal by the defendant Herman D. Baker from a decree entered in this cause [227]*227against him and his codefendants in the circuit court for the county of Kalamazoo, in chancery.
The facts are as follows: Defendant McGahey, who had for some time owned and conducted a certain saloon in the city of Kalamazoo, on July 22, 1908, sold and conveyed the entire stock in trade, fixtures, and personal property owned and used by him in and about said business to defendant Baker in bulk. In making this sale, these parties in no form or manner complied with the provisions of Act No. 228, Pub. Acts 1905 (2 How. Stat. [2d Ed.] § 2612), known as the “bulk sales act.” This was the only property owned by McGahey, and defendant Baker had been acquainted with him but a few days. On the date of said sale defendant Baker took immediate possession of all of said property and proceeded to continue the business. Defendant McGahey absconded for parts unknown, and his whereabouts have not since been known. He was brought into court by publication. Defendant Baker continued this business until August 14, 1908, when he sold and transferred to defendant Felix Schmidt for the sum of $2,500 all the stock in trade, fixtures, tools, and personal property of every kind owned and used by him in and about the said business, being the property purchased from McGahey. Neither of the parties to this sale conformed in any manner to the provisions and requirements of the said “bulk sales act.” Defendant Schmidt' upon his purchase immediately took possession, and was engaged in carrying on the business when this suit was instituted. Complainant had been employed by defendant McGahey some time previous to the date of the sale to Baker in and about these premises as a carpenter in charge of the carpenter work in repairing and remodeling the building occupied by defendant McGahey as a residence upstairs and as his business place on the ground floor, and so [228]*228worked for him up to and including the date of sale, at which time he was indebted to him in the sum of over $200.
Complainant filed his bill of complaint in this cause against these defendants for himself and in behalf of all the creditors of defendant McGahey, setting up at length the foregoing facts, and asking the aid of the court in equity in the premises, to decree the amount due him from McGahey, and that defendants Baker and Schmidt be declared receivers of all of the said stock of merchandise and fixtures, and the proceeds and avails thereof, for his benefit and that of the other creditors who might intervene, and that Baker, and Schmidt come to a full accounting for the said property and the proceeds of the same, and that a receiver be appointed in their stead, and that pending the action an injunction be granted.
To this bill of complaint, defendants Baker and Schmidt filed their several answers under oath. The answer of defendant Baker, which is the only one necessary to be considered by this court, he alone having appealed, admits all but three of the charges of the bill of complaint, and the record shows those were admitted upon the hearing of the cause.
Defendant on this appeal contends that the court in equity has no jurisdiction of this cause, for the reasons that complainant is not a judgment creditor, that complainant has a complete and adequate remedy at law, and in any event that the record shows complainant has waived any right of action which he might have had against defendant Baker or the goods in question.
Defendant did not demur to the bill of complaint or claim the right of demurrer in his answer on jurisdictional grounds. It does appear that, when complainant was sworn as a witness and proceeded to prove the indebtedness of McGahey to him, an objection was made to the admission of any such evidence, [229]*229unless it appeared that the claim had been reduced to judgment. Such a question cannot be raised after an answer upon the taking of proofs at a hearing. This court has repeatedly held that such an objection comes too late if made for the first time at the hearing of the cause. Stockton v. Williams, Walk. Ch. (Mich.) 120; Wales v. Newbould, 9 Mich. 45, and authorities cited; F. H. Wolf Brick Co. v. Lonyo, 132 Mich. 162 (93 N. W. 251, 102 Am. St. Rep. 412); Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264 (96 N. W. 468).
In each of the foregoing cases this court has held the question of jurisdiction should have been raised by demurrer, where the grounds of the objection appear upon the face of the bill; that, after defendants have answered, put the case at issue upon the merits, and taken proofs on that issue, they cannot raise the question of jurisdiction. The same rule has been recognized by the Federal courts. Hollins v. Iron Co., 150 U. S. 371 (14 Sup. Ct. 127).
In all cases where the question has been raised before this court, it has held that the question of jurisdiction is waived, when no demurrer is imposed until after issue is joined, and proofs are taken.
Appellant contends that it appears that complainant is not a judgment creditor, and therefore has no standing in a court of equity. The admitted facts show that defendant McGahey disposed of all of his property, absconded from the jurisdiction of this State, and his whereabouts could not be ascertained-; that process could not be had upon him in Michigan. It would have been impossible under the circumstances for complainant to obtain a judgment against the principal defendant McGahey. We find from the authorities it is not an inflexible rule that a judgment at law must be obtained by a creditor before resort to equity. There are exceptions to this rule in cases where a judgment cannot be obtained be[230]*230cause the debtor is dead, or has absconded from the State, and has no property in the State. This was recognized by this court in Earle v. Kent Circuit Judge, 92 Mich. 285, 289 (52 N. W. 615), where the court said:
“The complainant claims that while the general rule in all the States, statute or no statute, is that there must be a judgment and a return of. execution unsatisfied before a resort can be had to equity, still that there are, and always have been, exceptions to this general rule in special cases, as where a judgment cannot be obtained because the debtor is dead, or has absconded, or removed from the State, or is a nonresident. This claim is supported by the following among other cases [citing many authorities].
“The statute * * * cannot be said to point out the only conditions of equitable relief in cases of this kind. If it should be held to apply only to home judgments, as the New York statute, of which ours is a copy, has been interpreted in that State (Tarbell v. Griggs, 3 Paige [N. Y], 207 [23 Am. Dec. 790]), it would not, in our opinion, bar equitable relief in cases where a compliance with the statute was rendered impossible by the death, absconding, or removal from the State, or nonresidence of the debtor.”'
In the case cited, from which these excerpts are taken, the amended bill showed that a New York judgment had been obtained, yet the court recognized the exceptions to the general rule.
Free access — add to your briefcase to read the full text and ask questions with AI
McAlvay, C. J.
This is an appeal by the defendant Herman D. Baker from a decree entered in this cause [227]*227against him and his codefendants in the circuit court for the county of Kalamazoo, in chancery.
The facts are as follows: Defendant McGahey, who had for some time owned and conducted a certain saloon in the city of Kalamazoo, on July 22, 1908, sold and conveyed the entire stock in trade, fixtures, and personal property owned and used by him in and about said business to defendant Baker in bulk. In making this sale, these parties in no form or manner complied with the provisions of Act No. 228, Pub. Acts 1905 (2 How. Stat. [2d Ed.] § 2612), known as the “bulk sales act.” This was the only property owned by McGahey, and defendant Baker had been acquainted with him but a few days. On the date of said sale defendant Baker took immediate possession of all of said property and proceeded to continue the business. Defendant McGahey absconded for parts unknown, and his whereabouts have not since been known. He was brought into court by publication. Defendant Baker continued this business until August 14, 1908, when he sold and transferred to defendant Felix Schmidt for the sum of $2,500 all the stock in trade, fixtures, tools, and personal property of every kind owned and used by him in and about the said business, being the property purchased from McGahey. Neither of the parties to this sale conformed in any manner to the provisions and requirements of the said “bulk sales act.” Defendant Schmidt' upon his purchase immediately took possession, and was engaged in carrying on the business when this suit was instituted. Complainant had been employed by defendant McGahey some time previous to the date of the sale to Baker in and about these premises as a carpenter in charge of the carpenter work in repairing and remodeling the building occupied by defendant McGahey as a residence upstairs and as his business place on the ground floor, and so [228]*228worked for him up to and including the date of sale, at which time he was indebted to him in the sum of over $200.
Complainant filed his bill of complaint in this cause against these defendants for himself and in behalf of all the creditors of defendant McGahey, setting up at length the foregoing facts, and asking the aid of the court in equity in the premises, to decree the amount due him from McGahey, and that defendants Baker and Schmidt be declared receivers of all of the said stock of merchandise and fixtures, and the proceeds and avails thereof, for his benefit and that of the other creditors who might intervene, and that Baker, and Schmidt come to a full accounting for the said property and the proceeds of the same, and that a receiver be appointed in their stead, and that pending the action an injunction be granted.
To this bill of complaint, defendants Baker and Schmidt filed their several answers under oath. The answer of defendant Baker, which is the only one necessary to be considered by this court, he alone having appealed, admits all but three of the charges of the bill of complaint, and the record shows those were admitted upon the hearing of the cause.
Defendant on this appeal contends that the court in equity has no jurisdiction of this cause, for the reasons that complainant is not a judgment creditor, that complainant has a complete and adequate remedy at law, and in any event that the record shows complainant has waived any right of action which he might have had against defendant Baker or the goods in question.
Defendant did not demur to the bill of complaint or claim the right of demurrer in his answer on jurisdictional grounds. It does appear that, when complainant was sworn as a witness and proceeded to prove the indebtedness of McGahey to him, an objection was made to the admission of any such evidence, [229]*229unless it appeared that the claim had been reduced to judgment. Such a question cannot be raised after an answer upon the taking of proofs at a hearing. This court has repeatedly held that such an objection comes too late if made for the first time at the hearing of the cause. Stockton v. Williams, Walk. Ch. (Mich.) 120; Wales v. Newbould, 9 Mich. 45, and authorities cited; F. H. Wolf Brick Co. v. Lonyo, 132 Mich. 162 (93 N. W. 251, 102 Am. St. Rep. 412); Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264 (96 N. W. 468).
In each of the foregoing cases this court has held the question of jurisdiction should have been raised by demurrer, where the grounds of the objection appear upon the face of the bill; that, after defendants have answered, put the case at issue upon the merits, and taken proofs on that issue, they cannot raise the question of jurisdiction. The same rule has been recognized by the Federal courts. Hollins v. Iron Co., 150 U. S. 371 (14 Sup. Ct. 127).
In all cases where the question has been raised before this court, it has held that the question of jurisdiction is waived, when no demurrer is imposed until after issue is joined, and proofs are taken.
Appellant contends that it appears that complainant is not a judgment creditor, and therefore has no standing in a court of equity. The admitted facts show that defendant McGahey disposed of all of his property, absconded from the jurisdiction of this State, and his whereabouts could not be ascertained-; that process could not be had upon him in Michigan. It would have been impossible under the circumstances for complainant to obtain a judgment against the principal defendant McGahey. We find from the authorities it is not an inflexible rule that a judgment at law must be obtained by a creditor before resort to equity. There are exceptions to this rule in cases where a judgment cannot be obtained be[230]*230cause the debtor is dead, or has absconded from the State, and has no property in the State. This was recognized by this court in Earle v. Kent Circuit Judge, 92 Mich. 285, 289 (52 N. W. 615), where the court said:
“The complainant claims that while the general rule in all the States, statute or no statute, is that there must be a judgment and a return of. execution unsatisfied before a resort can be had to equity, still that there are, and always have been, exceptions to this general rule in special cases, as where a judgment cannot be obtained because the debtor is dead, or has absconded, or removed from the State, or is a nonresident. This claim is supported by the following among other cases [citing many authorities].
“The statute * * * cannot be said to point out the only conditions of equitable relief in cases of this kind. If it should be held to apply only to home judgments, as the New York statute, of which ours is a copy, has been interpreted in that State (Tarbell v. Griggs, 3 Paige [N. Y], 207 [23 Am. Dec. 790]), it would not, in our opinion, bar equitable relief in cases where a compliance with the statute was rendered impossible by the death, absconding, or removal from the State, or nonresidence of the debtor.”'
In the case cited, from which these excerpts are taken, the amended bill showed that a New York judgment had been obtained, yet the court recognized the exceptions to the general rule. Further, the remedy in the instant case is given by the statute, by which any and all creditors may, as soon as knowledge comes to them that the requirements of the statute have not been followed, proceed immediately, not to set aside the sale, but to impound the property or its proceeds. Upon application of any of the creditors, “any purchaser shall become a receiver and be held accountable,” etc., is the reading of the statute, and for this reason the judgment creditor rule does not apply.
The contention that complainant has a complete [231]*231and adequate remedy at law is based upon the decisions of this court in construing the bulk sales act. The bill of complaint was filed in behalf of complainant and all other creditors of defendant McGahey. It sets up an equitable cause of action, and shows that this property is being sold and disposed of by defendants, and complainant will be left remediless, unless the court interferes. Its charges and averments of fact are not in dispute. There is no pretense on the part of appellant that any of - the requirements of the bulk sales act were followed by either party to the sale. The defendant McGahey had absconded. after the transfer of all his property to defendant Baker, who in turn sold the property to defendant Schmidt before the institution of this suit. The bill prays for an accounting, a receiver, and an injunction.
The bill of complaint is not filed upon the theory of a judgment creditor’s bill, or a bill in aid of execution, but upon the theory that the statute made the transfer to defendant Baker absolutely void as to creditors; that creditors of McGahey are entitled to reach this property and apply it upon their claims; that for such purpose it is necessary to have a receiver, an injunction, and an accounting. It is contended by complainant that by reason of the circumstances of this case he has no adequate remedy at law.
The bulk sales act has been before this court for consideration and construction several times, and, from an examination of the decisions of these cases, it is clear that, while the court has held a remedy by garnishment was permissible, it has refused to hold that it was the exclusive remedy under the statute. In the decisions upon the questions raised under this statute, this court has been unanimous only in holding that the law is constitutional, and that in case of a sale void thereunder the seller is a necessary party. To deny jurisdiction to a court in equity would be contrary to a fair interpretation of this statute, [232]*232which, by its title and the language used in it, indicates that it was enacted for the purpose of preventing frauds by debtors upon creditors, and made certain transfers “void as against the creditors of the seller,” if the requirements of the act were ignored, and, further, made the purchaser in such cases a “receiver” to be held accountable to the creditors of the seller upon application of any of such creditors.
This is not a statement of the arguments made by counsel in previous cases in favor of exclusive jurisdiction in equity, but is in support of the proposition that it was the legislative intent not to deprive equity of jurisdiction. The statute creates a trust fund in the hands of the purchaser for the benefit of all creditors. The profession understands that the usual proceeding where an application is made to a court by a creditor against a receiver or trustee is by a bill or petition in equity, and such proceeding is not like one in garnishment where the reward inures only to the benefit of the swift creditor, but is a proceeding where every creditor is entitled to his just proportion of a trust fund. Cases are arising under this statute where an action at law is not an adequate remedy.
Bixler v. Fry, 157 Mich. 314 (122 N. W. 119), was a case quite similar to the instant case. In one of the opinions written by Mr. Justice Moore, it was said:
“The questions raised by this record have not been passed upon by this court, and, so far as we are advised, by any court. The effect of the demurrer to the bill is to admit the truth of its averments. * * * The case is unlike the two cases already cited, which were proceedings in behalf of a single creditor. The bill is filed, not only in behalf of the complainant, but in behalf of all the other creditors. It calls for an accounting and for a receivership. It is not necessary to quote the provisions of Act No. 223, Pub. Acts 1905, as they are so easily accessible, but we think a reading of them establishes the authority of a court [233]*233of equity to interfere in such a case as is stated in the bill of complaint.”
In the instant case all allegations setting up a case warranting equitable relief are contained in the bill of complaint. It makes a stronger case for complainant than that stated in Bixler v. Fry, supra. These facts alleged are admitted, and from them it appears that complainant has no adequate remedy at law. He has brought himself within the rule which permits the maintenance of a bill by one who is not a judgment creditor, if under the circumstances of this case such a showing is necessary.
Appellant also contends that in any event the complainant is not entitled as a creditor to recover under this void sale for the reason that he waived all rights under the statute. The record shows that this claimed waiver occurred after the completion of the sale, and was entirely without consideration, during a brief conversation had by McGahey, in the presence of Baker, with complainant, who knew nothing about the sale or the circumstances surrounding it, or that it had been made contrary to the provisions of law. This contention requires but brief consideration. It is too well settled to require citation of authorities that there can be no waiver of rights without knowledge of the facts upon which it is based. A waiver has been aptly defined, as follows:
“It is an intentional relinquishment of. a known right, or such conduct as warrants an inference of a relinquishment of such right.”
The record shows no waiver on the part of complainant.
Our construction, therefore, is that by the provisions of this act jurisdiction is given to courts in equity to grant relief to creditors. This jurisdiction is not exclusive. Musselman Grocer Co. v. Kidd, Dater & Price Co., 151 Mich. 478 (115 N. W. 409).
[234]*234The decree of the circuit court in favor of complainant and against defendant and appellant Herman D. Baker is as to him in all respects affirmed, with costs of both courts in favor of complainant and against such defendant and appellant.
A decree will be entered in this court accordingly.
Brooke, Kuhn, Stone, Moore, and Steere, JJ., concurred with McAlvay, C. J. Bird, J., concurred in the result.