
    Horatio Buckingham and Mark Buckingham v. The Commercial Bank of Cincinnati, and others.
    X. The provisions of section 20 of the code of civil procedure, that an action shall be deemed commenced, as to each defendant, at the date of the summons which is served on him or on a co-defendant who is a joint contractor, or otherwise united in interest with him, is applicable, by analogy, to petitions in error.
    2. In a proceeding in error against several creditors, to reverse a judgment obtained by them setting aside a sale of land as fraudulent, one of said creditors being the sole plaintiff below, and the others by their cross-petition joining in the prayer of the plaintiff for relief, the defendants in error are united in interest, within the meaning of said twentieth section of the code, so that the service of a summons upon one prevents the running of the statute of limitations as to all.
    3. In such case, as the judgment is a unit, and cannot properly be reversed as to some of the parties and affirmed as to others, all must be brought into court before the final adjudication.
    4. Where the plaintiff in a petition in error names as defendant thereto one only of suok creditors, with the words "and others” added, but files with Ms petition a transcript of the record below, and refers to it as such in Ms petition, the petition in error will be regarded as a proceeding against all the creditors appearing by the record to be so united in interest with the defendant named.
    5. Service of a summons in error, directed to only one of several defendants in error, upon the attorney of all, is good only as against the defendant named in the writ, and does not bind the others.
    Error to the district court of Hamilton county.
    The originalaetion was brought by the Commercial Bank of Cincinnati, to set aside an alleged fraudulent conveyance of land made by Mark Buckingham to his brother Horatio, and to subject the same to the payment of the banks’ judgment against Mark ; and also for the purpose of having certain personal property, transferred by Mark to Horatio, declared a trust fund for the benefit of all the creditors of Mark, and accounted for and distributed as such. In addition to the two Buckinghams, other named judgment creditors, who as well as the Commercial Bank had acquired specific lein upon the land for the satisfaction of their judgments, were also made parties defendant.
    The judgment creditors so made defendants, appeared in the cause, and filed answers or cross-petitions setting forth their judgments and leins, and joining the Commercial Bank in its prayer for relief. The Buckinghams filed answers, in which, among other things, they deny all fraud in the sale of the land, and assert that the transfer of the personal property was an absolute and valid sale thereof to Horatio, and not in trust for the benefit of any other person or persons.
    On hearing in the common pleas, the petition was dismissed. An appeal was taken to the district court by the Commercial Bank of Cincinnati, alone; but the other judgment creditors also appeared in the district court, and the ■ whole case was there again heard. By the judgment of the district court the sale of the land was declared to be fraudulent, and the land was subjected to the payment of the several judgments mentioned, and the said personal property •was held to be a trust fund, enuring to the benefit of all the creditors of Mark Buckingham, and ordered to be distributed among them, or such of them as should come in and prove their claims.
    It is to reverse this judgment of the district court that the present petition in error is filed, the principal assignment of error relied upon, and the only one that need be here noticed, being that the finding of the district court was contrary to the evidence, and that a motion for a new trial, based upon that ground, was overruled.
    The petition in error was filed, and process of summons was served upon the Commercial Bank, within the statutory period of three years after the rendition of the judgment; but the other judgment creditors, the present co-defendants of the Commercial Bank, were not served with process, nor was any process issued against them, until after the expiration of said period of three years ; nor did the -original petition in error expressly make these other judgment creditors parties defendant, but merely made them such, if at all, by designating the defendants as “The Commercial Bank of Cincinnati, and others,” and by referring to, and filing with the petition in error, a copy of the record of the cause in the district court. Alter the expiration of the three years an amended petition was filed, making these creditors parties by name, and they have all since been duly summoned.
    One of the defendants, so served with process after the period of limitation had expired, filed an answer at rules, setting up the limitation as a bar to the proceeding in error, and moved to dismiss the same as for want of jurisdiction.
    The other defendants so brought into the case after the expiration of the period of limitation, being in default for answers, asked leave to interpose a similar defence by answer, and made a similar motion to dismiss the proceeding.
    A bill of exceptions, setting forth all the evidence in the cause, forms part of the record. So far as is necessary to an understanding of the points decided, the evidence contained in the bill of exceptions, is set forth in the opinion of the court.
    The case was argued and submitted as well upon the assignments of error as upon the question of jurisdiction or limi tation.
    
      Caldwell, Cbppock & Caldwell, and Hoadly (& Johnson for plaintiffs in error :
    1. The appeal by the Commercial Bank took the whole case to the district court, and, in like manner, the suit of error removed it here. "When the Commercial Bank moved in the matter, it moved, by force of our statutes, for the benefit of all the creditors ; and we think, in like manner, defends for their benefit, and in fact represents them all in this court; at least, so far as is necessary to give the court complete jurisdiction in the case, and to enable it to reverse or modify the decree of the district court.
    The decree in this case, so far at least as the personal property is concerned, is not in favor of any particular party to the suit, but is in favor of all the creditors of Mark Buckingham, as well those who are not parties to the suit, as those who are. The creditors who are not parties have just as much interest in, and as good a right to this decree, as the Kentucky banks. That part of the decree is just as much in favor of the creditors who are not parties to the action, as it is in favor of those who are. Yet so far as the creditors who are not parties to the action are concerned, they are certainly before this court, (represented by the Commercial Bank), so far as is necessary to give this court complete jurisdiction of the case, and enable it to bind their rights under the decree of the district court.
    The court having once obtained jurisdiction of the caser will not dismiss the case for want of proper parties, but will permit an amendment, bringing in the proper additional parties, as has been done in.this case.
    See Code, secs. 37, 40 ; Mitchell v. Gazzam et al. 12 Ohio,. 815 ; Hyde & Co. v. Olds et al. 12 Ohio St. 591 ; Doremus et al. v. O’Harra et al. 1 Ohio St. 45 ; Dickson et al. v. Rawson et al. 5 Ohio St. 218 ; Justice et al. v. Uhl et al. 10 Ohio, 170 ; Atkinson & Rollins v. Jordan, Ellis & Co. et al. 5 Ohio, 298 ; Hollowell & Co. v. Bayliss et al. 10 Ohio St. 536 ; Stanton, Sheldon & co. v. Keys et al. 14 Ohio St. 443 ; S. & S. 397 ; Thompson et al. v. Brown et al. 4 Johns. Ch. 619 ; Harkrader et al. v. Leiby et al. 4 Ohio St. 602 ; 2 Atk. 15 ; 3 Atk. 111; Story Eq. Pl. secs. 332, 885, 887; Hard & Sewall v. Everett, 1 Paige Ch. 124.
    2. The statute of limitations does not run in favor of the parties who are brought in by the amended petition in this case. The case falls under the provision of the 20th section of the code which prescribes when an action shall be considered as commenced.
    All the creditors of Mark Buckingham are united in interest with the Commercial Bank, in the question in controversy in this action. If the conveyances are sustained, it affects them all alike. If they are set aside, they all get the advantage of it. In their cross-petitions the defendant creditors pray for the same relief asked for by the plaintiff. They are so united in interest that under the practice in chancery, and under the 37th section of the code, one creditor could prosecute or defend for all.
    The question of the validity of the conveyances lies at the foundation of the claims of all the creditors, and it cannot be decided without affecting them all alike. As to this question, the interest of the creditors is certainly united in every sense of the word. Their interests are so united that they cannot be severed. The question cannot be decided in favor of one creditor and against another. And being so united in interest, in the matter in controversy in the case, the defendants whom the court has thought proper to have brought in, in order to do complete justice, ought not to be permitted to setup the statute of limitations, to prevent justice being done. It was to meet just such a case as this, that the provisions of the 20th section of the code were enacted. Adams’ Eq. p. 258.
    The plea of the statute of limitations is a defence not to be favored. Sheets v. Baldwin’s Admr. 12 Ohio, 120 ; Newson’s Admr. v. Row, 18 Ohio, 240.
    The summons in error was served on the attorney, for al] the defendants in this case, and especially for the Kentucky banks.
    3. The evidence does not warrant the decree. Indeed, we think we do not state the case too strongly when we say that the evidence, so far from, proving fraud, affirmatively proves an honest and fair transaction. Mark Buckingham has applied all his property to the payment of his debts.
    An insolvent debtor may prefer certain creditors. In the absence of a bankrupt law, we have no doubt that he can make such preference in the payment of his debts. The payment of the claims of creditors in this way cannot be said to be a fraud on creditors. The debtor, although insolvent, is still the owner of his property. No other person, until some lien is imposed, has any title whatever to it.
    We regard this question as settled by judicial authority. It has been frequently held in Ohio that an insolvent debtor may pay, or secure to be paid to certain of his creditors, their claims, although such payment may give a preference over other creditors. Doremus v. O’Hara et al. 1 Ohio St. 49 ; Atkinson v. Tomlinson et al. Ib. 237 ; Fassett v. Trader et al. 20 Ohio, 545 ; Bagley & Co. v. Waters, 7 Ohio St. 359. We also refer to Benjamin.on Sales, 363-8, and the cases there cited.
    
      Rufus King for the Commercial Bank of Cincinnati:
    1. The only parties now before the court are Horatio Buckingham and Mark Buckingham, as plaintiffs in error, and the Commercial Bank of Cincinnati as defendant. Neither of the other attaching creditors is made a party in the petition, or served with the summons in error. The judgment of the district court, which sets aside the conveyance to Horatio Buckingham as fraudulent and void as to all creditors, is left standing in full force ; and so also as to the trust established in the chattel property assigned to him.
    There can be no error in such a judgment as to the Commercial Bank severally. The conveyances, if set aside at all, are wholly set aside, and the trust, if established at all, is valid for all creditors. The Commercial Bank cannot be severed from the rest, being conclusively fixed by the record as one of the attaching creditors of Mark Buckingham. It is precisely the converse of the case of Messe v. Keefe, 10 Ohio, 362, where the will being set aside as to one heir was held to be wholly annulled, and the entire estate to be distributed.
    2. The finding and judgment of the district court were fully justified by the evidence. The conveyances of the lands by Mark Buckingham, through Langdon to Horatio Buckingham, were properly declared to be fraudulent as to creditors. And the assignments of the personal property to Horatio Buckingham were within the act of March 14, 1853, then in force ; being made in contemplation of insolvency, with the design to prefer the creditors named in them, to the exclusion of others, and not only coupled with a secret trust but fraudulent in their object. If not actually fraudulent, they fall directly within the intent of the statute, and enured, in Horatio Buckingham’s hands, to the benefit of all who were creditors at the time. Bagley v. Waters, 7 Ohio St. 359 ; Justice v. Uhl, 10 Ohio St. 170.
    
      Moulton & Johnson for Wilgus & Bruce, defendants in error,
    insisted that more than three years having elapsed, they were not liable to be made parties; and cited Smetters et al. v. Rainey et al. 14 Ohio St. 287 ; Same case, 13 Ohio St. 568 ; Code, secs. 34, 35, 36, 20: Robinson v. Orr et al. 16 Ohio St. 284; Nolan v. Urmston, 17 Ohio, 170; Sturges et al. v. Longworth, 1 Ohio St. 545 ; Massie’s heirs v. Matthews ex’rs, 12 Ohio, 351; Wilkins v. Phillips, 3 Ohio, 49 ; Messe v. Keefe, 10 Ohio, 362 ; Key v. Watson, 17 Ohio, 27 ; S. & C. stat. 1109.
    
      L, EL Swormstedt and O. B. Simrall, for the Maysville Branch of the Farmers’ Bank of Kentucky, defendant in error:
    1. This bank being a party in interest in the judgment below, is a necessary party to any' proceedings to reverse or modify the same. Smetters v. Rainey, 14 Ohio St. 287 ; Same case, 13 Ohio St. 569.
    
      2. This bank having been made a party to these proceedings in error, after the time provided by statute for commencing such proceedings, is entitled to plead the statute as a bar to any proceedings against them. Code, sec. 523 ; Smetters v. Rainey, 14 Ohio St. 287.
    3. Proceedings in error being adversary in their character, those only who are brought before the court by process duly issued and served, are defendants therein. The commencement of the proceeding in error against the Commercial Bank of Cincinnati was not a commencement against other parties interested in the matter in dispute. Robinson v. Orr et al. 16 Ohio St. 287; Lessee of Taylor v. Boyd, 3 Ohio, 354 ; Allen v. Mayor of Savannah, 9 Geo. 292 ; Code, secs. 515, 516, 57, 34, 35, 36 ; 14 Ohio St. 290 ; Society, &c. v. Ballard, 4 Vt. 119 ; Hubbard Adm’r v. DuBois, 37 Vt. 96 ; Clark v. Freeman, 4 Vt. 122 ; Wilson v. Laws, 1 Salk. 59 : Verplanck v. Merchantile Ins. Co. of New York, 2 Paige, 449 ; Moore v. Stark, 1 Ohio St. 372 ; Huston v. McCarty’s heirs, 3 Litt. 274; DeWolf v. Mallet, 3 Dana, 214; Trimble v. Longworth, 13 Ohio St. 431; Adams Eq. p. 312.
    4. The statutory bar having taken effect as to the Mays-ville Branch of the Farmers’ Bank of Kentucky before the issuing and service of summons, no amendment of the petition in error, or order of the court can give it jurisdiction over that bank. Miller v. McIntyre, 6 Peters, 63 ; Ang. on Lim. p. 336 ; Morrell v. Massa, 1 Kansas, 224 ; Pridgin v. Strickland, 8 Texas, 427 ; Clark v. Kellar, 4 Bush (Ky.) 223 ; Bell v. Austin, 13 Pick. 93 ; Roberts v. Bate, 6 Adol. & Ellis, 781.
   Welch, J.

The first question presented is whether the proceeding is barred by the statutory limitation of three years. If it is not, the only remaining inquiry is whether the district court erred in refusing to grant a new trial, upon the ground that the finding of the court is not supported by the evidence.

The judgment of the district court is a unit, in the sense that it cannot justly be set aside as to some of the parties, and affirmed as to others. All the creditors of Mark Buck ingham who were parties thereto, whether nominally as plaintiffs, or as defendants, are alike interested in having the judgment affirmed, and will be alike affected by its reversal. Jurisdiction of the case, then, can only be had by bringing them all before the court. That has now been done, and the jurisdiction is complete, unless the proceeding has become barred by the statute of limitation. Has it become so barred ?

One of the present defendants, the Commercial Bank of Cincinnati, it is admitted, was duly summoned before the expiration of the period of limitation. Another, the Mays-ville Branch of the Farmers' Bank of Kentucky, it must be conceded, was not summoned till after the expiration of that period. And, although the attorney of the Commercial Bank, who acknowledged service of the summons issued against the bank, was also the attorney of the other defendants, yet as the summons was directed to the Commercial Bank alone, its service was a service as to the Commerical Bank alone. So that, in truth, one of the defendants only was brought into court before the statutory period of limitation had expired, and the others were brought in afterwards. It makes no difference in principle, however, whether four of the defendants, or only one of them, was not served with process until after the expiration of the three years. In either case the same question is presented, namely, whether a service upon part of the defendants saves the case as to all, or whether, on the other hand, the non-service upon part operates a bar as to all. From the very nature of the case there is no middle ground between these alternatives, and one or the other must of necessity be adopted. Either the case is barred as to all, or it is barred as to none. Either the court has jurisdiction of all, or it has no jurisdiction of any.

The code of civil procedure contains no direct or specific provision as to what shall be deemed the commencement of a proceeding in error in order to save it from the operation of the limitation imposed. By analogy, however, we think that the 20th section of the code, although strictly applicable only to “civil actions,” should be applied as well to proceedings in error. The reason which underlies the rule prescribed in that section exists alike in both cases.

The 20th section of the code provides, that “ an action shall be deemed commenced,” so far as regards limitation, “ as to each defendant, at the date of the summons which is served on him or on a co-defendant who is a joint contractor, or otherwise united in interest with him.” If, therefore, at the date of the summons which was served upon the Commercial Bank of Cincinnati, the other defendants who have since been summoned were co-defendants, and were “ united in interest” with the Commercial Bank of Cincinnati, then the proceeding in error is to be deemed commenced, as to all the defendants, at the date of the summons so served upon the Commercial Bank. We think they were such co-defendants, and that there was a union of interest between them and the Commercial Bank, within the meaning and reason of the section of the code referred to.

It is contended that they were not “ co-defendants,” because they are not named in the petition in error. In the petition in error the cause is entitled: “ Horatio Buckingham and Mark Buckingham v. The Commercial Bank of Cincinnati, and others.” In the absence of any thing further, this would undoubtedly be held as a petition against the Commercial Bank alone, and the words “ and others ” would have to'be rejected as meaningless. But there is filed with the petition, and referred to in it as such, a copy of the record in the district court, showing who were in fact parties to the judgment, and how they were united or opposed in interest. The law never rejects words for uncertainty where it is reasonably practicable to assign them a meaning. These words “ and others,” aided by the record, reasonably refer to and designate the other creditors who, in the case below, had joined with the Commercial Bank in praying for and procuring the judgment sought to be reversed, and who were alike interested with the Commercial Bank in having it affirmed.

As to the precise nature, or distinctive character 01 the union of interest spoken of in the 20th section of the code. ■which makes the service of process upon one, the commencement of an action against all, we do not undertake now to lay. down any general rule. It is enough to say, that we think the relation subsisting between the defendants here, comes fairly within the reason and spirit of the provision. Their interest is to maintain the judgment equally, as it is the interest of Horatio Buckingham to set it aside. This is equally true of all the defendants. They have a common interest. They are so united in interest that it is impossible, by any judgment that can be rendered in the cause, to separate them. Any judgment that will affect the one, whether favorably, or unfavorably, will, in like manner, and necessarily, affect the others also. There is no antagonism between them, and can be none, upon any question involved in the adjudication of the case.

It seems to us, therefore, that the proceeding in error was well commenced as to all the defendants now before us, and within the statutory period of limitation, and that the court has full jurisdiction of the case.

It remains to inquire whether the finding of the court below was contrary to the evidence. That finding was twofold : first, that the sale and conveyance of certain real estate by Mark Buckingham to one Langdon, and by the latter to Mark’s brother Horatio, was fraudulent as against the present defendants; and secondly, that the sale and assignment of certain personal property by Mark to Horatio was color-able, and made upon a secret trust for the benefit of Mark, or of certain preferred creditors of Mark, and therefore enured to the benefit of all his creditors. The evidence is voluminous and need not here be referred to, as it gives rise to no proposition of law deemed worthy of report. Suffice it to say that a majority of the court do not think the evidence shows the sale and assignment of the personal property to have been fraudulent, or upon a secret or other trust for Mark, or for any of his creditors. On the contrary, it Beems to us that it shows a sale and assignment of the property for its full value, in consideration that Horatio agreed to pay, and did afterwards pay, certain named debts of Mark, to the full amount of the price agreed upon, to creditors whom by law the debtor had a right to prefer. It is not easy to see how such a sale could operate as a fraud upon creditors. The full value of the property went to creditors. Those who received it are not complaining. The other creditors have no right to complain. At least a very strong case should be made in order to impeach the transaction. The sale occasioned no hindrance or delay to creditors, and they received the full value of the property.

As to the finding of the court upon the charge of fraud in the sale of the land, it is unnecessary that we should give any opinion. Eor the error in its finding in regard to the personal property, the judgment of the district court must be reversed, and the cause remanded for a now trial.

Judgment accordingly.

Scott, C. J., and White and Day, JJ., concurred.

McIlvaine, J., concurred in the propositions stated in the syllabus, but did not concur in the opinion that the finding of the court below was against the evidence.  