Widener v. Hartnett

THE COURT.

This action was brought to set aside a conveyance and assignment of real and personal property made by defendant Timothy Hartnett to his wife, defendant Emma Hartnett, for the alleged purpose of defrauding his creditors. Plaintiff had judgment. Defendant Timothy Hartnett appealed. Plaintiff now moves to dismiss the appeal or affirm the judgment. No substantial question is presented by the appeal.

Appellant’s first contention is that plaintiff had no right to maintain this action because it was predicated upon a judgment which had not become final when the com-' plaint herein was filed. The following facts will reveal the basis for this claim: In a prior action plaintiff sued appellant and his alleged employer to recover for personal injuries and damage to property sustained as the result of an automobile collision. Plaintiff had judgment against appellant for the sum of $5,790.60, interest, and costs, but a nonsuit was entered in favor of appellant’s employer. Plaintiff appealed from the order granting the nonsuit and, in so doing,

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worded his notice of appeal in such manner that it might appear to also have included an appeal from the judgment in his favor and against appellant. That appeal, or purported appeal, was pending when the present action was commenced, but it was abandoned about a month after the complaint was filed and more than a year prior to entry of judgment herein. On two occasions prior to the filing of the present action, and on one later occasion, writs of execution were issued on the prior judgment against appellant, and were returned unsatisfied, without attempt by appellant at any time to quash the writs or to prevent plaintiff from endeavoring to collect on the prior judgment on the ground that a purported appeal therefrom was pending. These facts do not sustain appellant’s charge that the present action was premature.

It is not a prerequisite to a judgment creditor’s right to bring suit to set aside fraudulent conveyances that the judgment obtained by him against his debtor shall have become final by affirmance on appeal or by the lapse of time within which an appeal might have been taken. The creditor may attack the transfer as fraudulent when he has reduced his claim to judgment and has endeavored without avail to collect it by execution.