Opinion
No. 2105.
Filed April 7, 1934.
Decided May 3, 1934.
PERRY, C.J., BANKS AND PARSONS, JJ.
I.M. Stainback and C.B. Dwight for the petition.
The respondents petition for a rehearing, upon two grounds. The first is that "the majority of the court in its decision erroneously assumed that there was only one creditor of the trustee, the court saying, `at least when there are no other creditors a single creditor can maintain a suit in equity to reach equitable assets of his debtor which cannot be reached on execution in an action at law.'" The whole question as to what were the allegations of the bill on the subject of whether there was only one creditor or more than one, whether the suit could be maintained by a single creditor and also whether other creditors, if they should appear later to exist, should be joined and under what circumstances, received consideration in the opinion which was filed. There was no erroneous assumption as to the allegations of the bill or as to the facts. The other ground is that the ruling that "if there are other creditors they can come in by intervention and their claims can be adjusted in this proceeding is contrary to and directly opposed to this court's decision in the case of Bertelmann v. Lucas, 28 Haw. 1, affirmed 7 Fed. (2d) 325." "At this stage of the proceeding," the petition for rehearing continues, "such intervention would render the proceeding multifarious." For present purposes, it is sufficient to say, as we have already held, that it does not appear that there are creditors other than the petitioner and that a creditors' bill to reach equitable assets is maintainable by one creditor only. Complications, if any, which may arise if and when other creditors appear and endeavor to join the petitioner will be dealt with at the proper time.
The petition is denied, without argument, under the rule.