
    ANTON HEIM, Plaintiff and Respondent, v. JAMES S. DAVENPORT, et al., Defendants and Appellants.
    Before Curtis, Ch. J., and Freedman, J.
    
      Decided December 1, 1879.
    Appeal from judgment.
    
      S. E. Church, for appellant.
    
      D. M. Porter, for respondent.
   By the Court.—Freedman, J.

This case presents a contention between creditors of the insolvent firm of Davenport & Co., for the proceeds of goods of the firm sold on execution by James S. Davenport.

It is quite plain that the plaintiff originally commenced the action as a judgment and execution creditor, upon the theory that the judgment of James I. Davenport was fraudulent, and without consideration, and the result of a scheme between him and the other defendants to possess himself wrongfully of the property of the firm. This is the gravamen of the complaint.

Upon the trial the plaintiff failed to prove any such case. But the facts developed, for the reasons stated by the learned judge below, established an equity in favor of the plaintiff to the property in question, superior to that of James I. Davenport, and on that account the plaintiff made out a case against the latter. Upon full consideration I can, upon the questions which appear to have been raised, find no ground for a reversal of the judgment as against James S. Davenport.

On the other hand, I fail to see how the judgment appealed from can be sustained in its present form, as to the defendants, James B. Davenport and James Grant, constituting the firm of Davenport & Go. It stands against them, as it does against James I. Davenport, as a simple money judgment, and as such it is enforceable by execution against them directly. But the plaintiff-has already, recovered such a judgment against them in the marine court, which was made the basis for the present action. Nor is there anything in the facts of the case which calls for a duplication of it. Their names seem to have been included because they omitted to call, by some appropriate motion, the attention of the trial judge to the fact that they were not necessary parties to the cause of action remaining against James I. Davenport.

Under all the circumstances, and especially as the three defendants have throughout appeared by the same attorney, the most equitable disposition that can be made of the present appeal is as follows, viz. :

The judgment should be modified so as to adjudge and decree a priority of judgment and execution in favor of the plaintiff as against the defendant James I. Davenport, and that the plaintiff recover judgment against said James I. Davenport for the sum of $449.85, principal and interest, and costs and disbursements, taxed at $147.65, amounting in the aggregate to the sum of $597.50, and as thus modified, the judgment should stand affirmed against all the defendants, without costs to either side, on this appeal.

Curtis, Ch. J., concurred.  