This action was commenced by the plaintiff as receiver of the property and assets of Charles Casper & Co., a corporation, against Samuel Symons as receiver of the' assets of. the co-partnership of Robinson & Symons, to set aside certain judgments obtained in an action brought by the defendant against the corporation of Casper & Co. on the 19th of January, 1895,-in which judgment was entered on the 18th of March, 1S95, by default, and an order was entered on the 1st óf April, 1895, whereby it wasArdered that the levy made upon the property of Casper & Co., upon the. execution issued upon said judgment, should be released upon condition that the property of thé defendant be sold by the receiver of "the defendant in that action who had been: subsequently appointed, and the proceeds of such sale be applied toward the'payment of the judgment recovered by the plaintiff. - .
."The complaint in this action, after setting up. the appointment of the plaintiff as permanent receiver of the corporation of Casper &
The complaint further alleged the said judgment was made and entered while said .corporation of Casper & Co. was wholly insolvent, and known so to he by the officers thereof and by said receiver Symons, and that said, action was commenced and .judgment allowed to be entered by default in contemplation of such insolvency, and wus made and suffered .for the purpose óf defrauding the creditors of said corporation other than said Robinson & Symons, and said acts were performed and payments made with' the intention of giving a preference to the defendant in this action over the othel* creditors of said corporation, by transferring, to such defendant the' property of said corporation, contrary to the statute in such casé‘made, and provided; and -that the said execution so issued- and levied, and the stipulation on which the order was entered,, and the payment of $100 by the receiver, were all contrary to the statute in such case made and provided, and were wholly void and'without effect.
The defendant answered, denying knowledge of the insolvency óf Gasper & Co., admitting the commencement of the suit and the entry of the judgment, and alleging that the debt upon which the
The issues thus raised coming on for trial, the complaint was amended by setting up the additional fact that the corporation had refused to pay certain of its notes or other obligations when due, prior to the suffering of the' judgment set out in the complaint. The parties having conceded most of the facts hereinabove stated, the Order of April 1, 1895, directing the payment of the judgment out of the proceeds of the sale of the property of Casper & Co. was offered in evidence and also the stipulation therein referred to, and the articles of incorporation of Casper & Co., and the order of June 4, 1895, appointing the plaintiff as permanent receiver of Casper & Co. by which it was adjudged that ■ the defendant by virtue of the judgment above mentioned had a first lien upon all the money and assets of said Casper & Co. which lien was to be satisfied and paid in full before payment of any other creditors of said corporation, and said judgment was to have precedence over any other payment on any indebtedness due from said corporation, especially over any and all fees, costs and commissions applicable to the receivership.
The court having suggested that it did not think the plaintiff could maintain this action without a general motion setting aside all of those prior orders, and restoring the defendant as near as possible to the State he was in when the stipulation was made, the plaintiff offerted to make proof of the matters set forth in the complaint. The defendant objected upon the theory that upon the state of facts as alleged the plaintiff could riot recover. The court sustained this objection,, and upon motion of defendant’s counsel dismissed the complaint upon the ground that the facts proved, and those offered to be proved, did not constitute a cause of action. • And from the judgment thereupon entered this appeal is taken, it being claimed upon the part of the appellant that the court then having jurisdiction, not only could it declare the judgment fraudulent and void, but it also had power to vacate the order of May 1, 1895 (probably meaning April), as imp’royidently and improperly made, all of which was prayed for in the complaint.
We do not think that this contention upon the part of the plaintiff
Upon a consideration of the case, cited it will be seen, that upon the facts alleged, if the plaintiff would be permitted in this action to attempt -to attack the orders and judgments above mentioned,mo right to a recovery is shown. ■'.
The judgment should be affirmed, with costs.
Babbett, Rtjmsey, Williams and Pattekson, JJ., concurred.
Judgment affirmed, with costs.