Castle v. Bader

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.

This is an action brought by the plaintiffs, creditors of the defendant Charles Bader, to set aside and cancel a judgment rendered in favor of the defendant John Bader, against Charles Bader, and to apply certain property, levied upon by the Sheriff under the latter judgment, in payment of the plaintiffs’ claims. The action was tried by the Court, who found for the plaintiffs, and rendered judgment accordingly, from which, and from an order overruling a motion for a new trial, the defendants appeal.

One error assigned by the appellants is that the complaint does not state facts sufficient to constitute a cause of action. It avers that the plaintiffs, Castle & Freeborn, commenced suit against Charles Bader, January 16th, 1862, and caused an attachment to issue, which was placed in the hands of the Sheriff, and on the twenty-eighth day of January, 1862, they recovered judgment therein; that on the sixth day of February, 1862, the other plaintiffs, Tandler & Co., commenced a suit against Charles Bader, in which an attachment was also issued and placed in the hands of the Sheriff; that on the sixteenth day of January, 1862, John Bader, conspiring with Charles Bader to defraud the creditors of the latter, commenced a suit against him, caused an attachment to issue therein by which the Sheriff attached all the property, real and personal, of the defendant therein, and on the thirty-first day of January the clerk entered judgment therein by default for $1,306 64 and eighty-four dollars costs, and they aver that they are informed and believe that Charles Bader is not indebted to John Bader in said sum of $1,306 64, or any other sum whatever, and that the judgment was obtained to hinder, delay, and defraud the plaintiffs. They also aver that the Sheriff threatens to sell the [77]property and pay the proceeds on the judgment of John Bader, and that Charles Bader has no other property.

In order to set aside a judgment or conveyance on the ground of fraud, it is not sufficient to aver in general terms that such judgment or conveyance was fraudulent, but the facts and circumstances constituting the alleged fraud must be set forth, (Kinder v. Macy, 7 Cal. 206.) The only fact charged to sustain the allegations of fraud is, “ that Charles Bader is not indebted to John Bader ” in the amount "of the judgment or any other sum. It does not charge that he was not justly indebted in that sum at the commencement of John Bader’s suit, or at the time of the rendition of the judgment ; nor does it aver that John Bader’s debt has been paid, satisfied, or discharged in any way.