Etchebarne v. Roeding

McFarland, J. On February 8,1877, one Estanislao Hernandez, a defendant herein, being insolvent, made an assignment of his property—consisting of several tracts of land, and a large amount of live-stock and other personal property—to Frederick Roeding, also a defendant, in trust, for the payment of his debts and the benefit of his creditors. At the time of the assignment, Hernandez made an inventory and statement which purported to set forth his property, his debts, and his creditors.

The present action was brought by a large number of creditors of said Hernandez. It is averred in the complaint, “ that the assignment was fraudulent; that by collusion between said Hernandez and said Roeding, property of the former of great value was fraudulently omitted from said inventory, and pretended, but not real, debts were set forth in said statement as owing to certain persons, who are also made parties defendant; that after the assignment, Roeding allowed Hernandez to remain in possession and receive the profits of a large part of the property; that Roeding for a long time failed to render any account as assignee, and when pressed to do so by plaintiffs, rendered a simulated and fraudulent account; and that Roeding has no knowledge of agricultural pursuits, is incompetent to manage the trust estate, and has greatly wasted it. There are other averments, not necessary to be mentioned. The prayer is, [519]that the assignment be declared void as to all property-remaining in the bands of the assignee; that he render a full account to plaintiffs of all his transactions as assignee; that he be removed from his office as assignee; that a receiver be appointed to take possession of all the property; that the property be sold and the proceeds of the sale be paid to plaintiffs ‘according to their respective rights ’; that the assignee be restrained from doing any further acts in the premises; that said pretended debts be declared fraudulent; and that plaintiff have such other relief as the court may deem just.” The answer of defendants denies nearly all the material averments of the complaint, except the assignment itself.

It appears from a number of papers printed in the transcript, and not objected to by respondents, and from a short bill of exceptions duly authenticated, that on June 22, 1886, the court made a large number of “findings.” In these, most of the issues of fraud were determined in favor of defendants; it is declared that Roeding should not be removed from his office; and it is found that a preliminary order restraining him from controlling the property or selling it should be set aside. Certain other issues are disposed of in these findings. It is ordered that an account be taken; and further, that “inasmuch as it is impossible to examine said account in open court, a reference will be ordered and a referee appointed on application and notice to take and report such account to the court.” It is also further ordered that, “upon the rendition of such account, such order will be made by this court as to the disposition of the moneys in 1ns hands as shall best serve to protect the rights of all parties interested in said fund.” Afterwards, on August 9, 1886, a document was signed by the judge of the court, and filed, which is called a “ decision,” but which appears to be an interlocutory decree, and intended to carry out the mandates of the findings. It also appears from other straggling papers printed in the