NORMAN C. HEWITT, ET AL.,
v.
PUNTA GORDA STATE BANK
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This case involves a second appeal concerning a creditor's bill filed to reach assets allegedly fraudulently concealed by a judgment debtor. The court affirmed the denial of the defendant's motion to dismiss the amended bill, finding it sufficient in substance.
Yes, the amended bill is good in substance as a bill in the nature of a creditor's bill to reach assets alleged to have been fraudulently concealed. No, persons appearing to be grantors of alleged fraudulent conveyances are not indispensable or necessary parties to this type of bill.
“Under Section 5771 C. G. L., 3864 R. G. S., a bill in equity may be brought to reach property alleged to have been fraudulently put out of reach of an execution held by the complainant in such bill.”
Establishes the statutory basis for a creditor's bill.
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Join FLexlaw to unlock all legal intelligenceThe complainant filed a bill in equity to reach property allegedly fraudulently put out of reach of an execution. After a previous appeal reversed an …
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On a previous appeal to this Court an order denying defendant’s motion to dismiss the bill was reversed and the cause remanded for further proceedings. Hewitt v. Punta Gorda State Bank, 108 Fla. 39, 145 Sou. Rep. 883. This is' another appeal from an interlocutory order made in the same case—but this time the appeal is from an order denying'defendant’s motion to dismiss the complainant’s bill as amended after the going down of the mandate on the first consideration just referred to.
Under Section 5771 C. G. L., 3864 R. G. S., a bill in equity may be brought to reach property alleged to have been fraudulently put out of reach of an execution held by the complainant in such bill. Such a bill, while often loosely referred to as an ordinary “creditor’s bill,” -is in reality a bill which this Court has described as a bill “in the nature *127of a creditor’s bill” brought to reach either equitable assets or any obstructive conveyance that is capable of being adjudged fraudulent and void under our statutes as to the particular judgment held by the complainant, so that such property as is sought to be reached may be sold'and the proceeds thereof applied to the satisfaction of the complainant’s judgment claim, as a result of the decree rendered on such bill. Cowdery v. Herring, 106 Fla. 67, 143 Sou. Rep. 433.
The bill, as now amended, appears to be good in substance as a bill in the nature of a creditor’s bill to reach assets alleged to have been fraudulently concealed by the defendant, a judgment debtor of the complainant, so the motion to dismiss was properly overruled by the Chancellor.
Under the peculiar parts of the case we hold that persons appearing to be grantors of alleged fraudulent conveyances are not indispensable or necessary parties to a bill of this character, as the decree in the case can affect no right of theirs, unless relief of some character is sought against such grantors.
Affirmed.
Davis, C. J., and Whitfield, Terrell, Brown and Buford, J. J., concur.
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Citator
Cited By
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J. C. Frell and Jeanne v. Frell, 154 So. 2d 706 (Fla. 3d DCA 1963)…s a recognized conflict of authority as to whether the debtor-grantor is a necessary or indispensable party defendant in an action to set aside a fraudulent conveyance,1 our Supreme Court has held that he is not. In Hewitt v. Punta Gorda State Bank, 117 Fla. 126, 157 So. 420, the court affirmed an order denying a motion to dismiss a complaint seeking to reach assets of a judgment debtor which were alleged to have been fraudulently conveyed. The court said: “Under the peculiar parts of the case we hold that…
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381651 Alberta, Ltd. v. 279298 Alberta, Ltd., 675 So. 2d 1385 (Fla. 4th DCA 1996)…pplied). As explained by our supreme court, in construing a predecessor statute to Chapter 726, “a bill in equity may be brought to reach property alleged to have been fraudulently put out of reach of an execution.” Hewitt v. Punta Gorda State Bank, 117 Fla. 126, 126, 157 So. 420, 420 (1934). Traditionally referred to as a “creditor’s bill,” our supreme court has described the proceeding as one brought by a creditor who has secured a judgment at law, and who has in vain attempted to satisfy it at law, but…
Authorities Cited
- The Fed. Land Bank of Columbia v. Godwin, 107 Fla. 537 (Fla. 1931)
- Florence v. Cowdery, 106 Fla. 567 (Fla. 1932)
- Hewitt v. Punta Gorda State Bank, 108 Fla. 39 (Fla. 1933)