Heyneman v. Dannenberg

10 Citing cases

  1. Aigeltinger v. Einstein

    143 Cal. 609 (Cal. 1904)   Cited 9 times
    In Aigeltinger v. Einstein, 143 Cal. 609 [101 Am. St. Rep. 131, 77 P. 669], the supreme court, speaking through Chipman, Commissioner, cites practically all the preceding cases on this subject and lays down the rule that "a creditor who has merely levied an attachment upon real property as the property of his debtor, subsequent to the date of an alleged fraudulent conveyance made thereof by the debtor to his wife, cannot prior to the rendition of judgment against the husband maintain an action in equity to set aside the conveyance."

    An attaching creditor may sue in equity to set aside a fraudulent conveyance. (Civ. Code, secs. 3439, 3441; Case v. Beauregard, 101 U.S. 688, 690; Heyneman v. Dannenberg, 6 Cal. 376;Scales v. Scott, 13 Cal. 76; Conroy v. Woods, 13 Cal. 633;Bickerstaff v. Doub, 19 Cal. 109, 113;Castle v. Bader, 23 Cal. 76, 79; Miller v. Kehoe, 107 Cal. 340; Klous v. Hennessey, 13 R.I. 332; Adams v. Paige, 7 Pick. 542; Hall v. Eaton, 25 Vt. 458; Hull v. Stryker, 27 N.Y. 596, 601; Frost v. Mott, 34 N.Y. 253.) 65 Am. Dec. 519.

  2. Conroy & O'Connor v. Woods

    13 Cal. 626 (Cal. 1859)   Cited 10 times
    In Conroy v. Woods, 13 Cal. 633, the court said: "The authorities do not place the right to go into equity upon the ground that plaintiffs must show themselves to be creditors by judgment; but they go on the ground that they must show a lien on the property; and this lien exists as well by the levy of an attachment as by execution."

    (Sto. Eq. Jur. Secs. 349, 377; Heyneman v. Dannenberg , 6 Cal. 376; Adams v. Woods , 8 Id. 156.

  3. Scales v. Scott

    13 Cal. 76 (Cal. 1859)   Cited 7 times
    In Scales v. Scott, 13 Cal. 76, it was held that a judgment upon a note which was given in advance of a portion of the consideration and drew interest on the whole sum from date, was void as against creditors, for the reason given in McKenty v. Gladwin, Hugg & Co.

    Wm. T. Wallace, for Respondents, cited Heyneman v. Dannenberg, (6 Cal. 376,) as to their right to maintain the suit, and upon the point that the judgment in favor of Scott was far too much, even conceding it to have been bona fide, in fact, Taaffe v. Josephson, (7 Cal. 352; ) 12 Pick. 388; 3 Met. 44; (10 Cal. 227.)          Plaintiff was entitled to a decreeon the admission in the answer that the note for which judgment was confessed drew interest from date, although it was given for money loaned at different times, some of them being subsequent to the date of the note.

  4. Hahn v. Salmon

    20 F. 801 (9th Cir. 1884)

    In support of the demurrer, the defendant cites on this point, High, Inj. Secs. 26, 27, 94, 150; Martin v. Michael, 23 Mo. 50; and Shufeldt v. Boehm, 96 Ill. 560. But in my judgment the argument and weight of authority support the right of the attaching creditor to maintain this suit. It is so held in the following cases: Tappan v. Evans, 11 N.H. 311; Williams v. Michenor, 11 N.J.Eq. 520; Robert v. Hodges, 16 N.J.Eq. 299; Curry v. Glass, 25 N.J.Eq. 108; Davis v. Dean, 26 N.J.Eq. 436; Heyneman v. Dannenberg, 6 Cal. 376; Scales v. Scott, 13 Cal. 76. In Tappan v. Evans, supra, 327, the rule deducible from the authorities was stated as follows:

  5. Pehrson v. Hewitt

    79 Cal. 594 (Cal. 1889)   Cited 7 times

    Equity has concurrent jurisdiction with courts of law in cases of fraud, and may retain the case for full relief. (Bradley v. Bosley, 1 Barb. Ch. 125; 1 Story's Eq. Jur., 30, note; Bigelow on Fraud, 59; Bispham's Principles of Equity, p. 53, note 1, p. 57; People v. Houghtaling , 7 Cal. 348.) Equity has jurisdiction if the remedy at law is not plain, adequate, and complete. (Bispham's Principles of Equity, sec. 37; Story's Eq. Jur., sec. 33; Pomeroy's Eq. Jur., secs. 139, 181, 231; Jones v. Newhall , 115 Mass. 244; 15 Am. Rep. 97; City of Hartford v. Chipman , 21 Conn. 488; Scott v. Scott , 33 Ga. 102; Alverson v. Jones , 10 Cal. 9; 70 Am. Dec. 689; Heyneman v. Dennenberg , 6 Cal. 376; 65 Am. Dec. 519; Chard v. Stone , 7 Cal. 117; Hickman v. O'Neal , 10 Cal. 294; Ford v. Rigby , 10 Cal. 450.)          JUDGES: In Bank. Thornton, J. Works, J., Paterson, J., Sharpstein, J., McFarland, J., and Beatty, C. J., concurred.

  6. Castle v. Bader

    23 Cal. 76 (Cal. 1863)   Cited 11 times

    There is also another objection to the complaint, that it does not aver or show that the plaintiffs have acquired any lien upon the property they seek to reach and have applied in satisfaction of their debts, or that they have obtained judgments on their debts on which executions have been issued which have been returned no property found. (Heyneman v. Dannenburg , 6 Cal. 376; Thornburgh v. Hand , 7 Id. 554.) The complaint does not state whether the property levied upon by the Sheriff was real or personal, or consisted of both kinds; nor does it aver that the attachments issued by the plaintiffs were ever levied upon the property by which they would have acquired an attachment lien.

  7. Walker v. Sedgwick

    8 Cal. 398 (Cal. 1857)   Cited 11 times

    Any other competent proof would be equally efficient. The law does not require a vain thing, and to issue an execution against a person insolvent would be idle. (Heyneman v. Dannenberg , 6 Cal. 376.)          So, the objection, that the consideration of the notes was made up of both personal and real estate, we think not well taken.

  8. Taaffe v. Josephson

    7 Cal. 352 (Cal. 1857)   Cited 15 times
    In Taaffe v. Josephson, (7 Cal. 353,) attachment was issued upon several promissory notes, one of which was not due, and this fact was held to vitiate the judgment.

    The course pursued by the respondents has been repeatedly sanctioned by this Court. (See the case of Baker v. Bartol , 6 Cal. 483; Heyneman v. Dannenberg , 6 Cal. 376; Ryan v. Daley , 6 Cal. 238; 1 Story's Equity, secs. 546, 547; Drake on Attachments, 775.)          This is the rule in Virginia.

  9. Richardson v. Michel

    45 Cal.App.2d 188 (Cal. Ct. App. 1941)   Cited 12 times
    In Richardson v. Michel (1941) 45 Cal.App.2d 188, 196 [ 113 P.2d 916], this court applied the following limitations rule to an action to set aside a fraudulent conveyance: "The time when the [three-year] period of limitation prescribed by section 338, subdivision 4 began to run in the instant case depends upon whether the respondent [creditor] had knowledge of the material facts with respect to the fraud at the time his judgment was entered or, if not, upon when such facts were discovered, or perhaps should have been discovered, by him. [Citations.]"

    In some of the earlier cases language was used to the effect that a creditor could not attack a fraudulent transfer until he had exhausted his remedy by judgment, execution and return of nulla bona. ( Heyneman v. Dannenberg, 6 Cal. 376; Bickerstaff v. Doub, 19 Cal. 109 [ 79 Am. Dec. 204]; Castle v. Bader, 23 Cal. 75.) In the later cases, a distinction is made in accordance with the form of the action.

  10. James v. Schafer

    70 Cal.App. 372 (Cal. Ct. App. 1924)   Cited 1 times

    Appreciating the impossibility of obtaining a valid personal judgment against a nonresident in actions of this character, some courts have held that an attachment lien will suffice in that it gives the court jurisdiction to take the seized property and apply it toward the payment of the debtor's obligation. Thus, in Heyneman v. Dannenberg, 6 Cal. 376 [65 Am. Dec. 519], in a case decided before the adoption of section 3441 of the Civil Code, the supreme court said: "A court of equity will take jurisdiction of a bill for an injunction filed by attaching creditors of an insolvent, to restrain proceedings on execution against the property attached under a judgment against the debtor, in favor of another, alleged to have been obtained by fraud, where all the material allegations of the bill, except fraud, are admitted," and then, considering the question of courts having held the necessity of a previous judgment having been obtained, further said, "the modern decisions of some of the courts of the United States, seem, however, to have relaxed the severity of the English rule, and in some cases it has been held that a creditor who has acquired a lien under the attachment laws of a State may apply to a Court of Chancery without first proceeding to judgment." In Aigeltinger v. Einstein, 143 Cal. 609 [101 Am. St. Rep. 131, 77 P. 669], the