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Weiss v. Stelling

Decided: May 13, 1943.

TILLIE WEISS AND PETER GRIMBILAS, PLAINTIFFS-APPELLANTS,
v.
FRED R. STELLING, CHARLES A. LINDSLEY, GERARD LINDSLEY AND LINFAIR, INC., DEFENDANTS-RESPONDENTS



On appeal from the Supreme Court.

For the appellants, B. Bayard Strell.

For the respondents, Smith & Slingerland (Archibald F. Slingerland, of counsel).

Colie

The opinion of the court was delivered by

COLIE, J. Plaintiffs, Tillie Weiss and Peter Grimbilas, appeal from a judgment entered against them and in favor of the defendants, Fred R. Stelling, Charles A. Lindsley, Gerard Lindsley and Linfair, Inc. The aforementioned

judgment was entered upon a decision of the Circuit Court Judge after argument on the hearing of objections and points of law addressed to the amended complaint. Originally there were other defendants against whom judgment did not go and who are not parties to this appeal.

We are here dealing with an amended complaint, the first count alleging that Fred R. Stelling and his wife were judgment debtors of the plaintiffs; that execution issued and a levy was made upon the business run by the Stellings; that the plaintiffs agreed between themselves to purchase and conduct the business; that on September 28th, 1934, defendants, Charles A. Lindsley, Gerard Lindsley, and others, issued a warrant for distress for rent and fraudulently conspired to and purchased the property in the name of Charles A. Lindsley and others for the use and benefit of the Stellings; that "thereafter" the defendants organized Linfair, Inc., for the fraudulent purpose of holding title to the property and that the defendants transferred title to Linfair, Inc., in furtherance of said fraudulent conspiracy and Linfair, Inc., then falsely pretended to carry on the business, employing the Stellings therein and thus conspired to aid the Stellings to evade payment of their legal obligation to pay the judgment held by the plaintiffs.

The second count sounds in conversion and alleges that on September 28th, 1934, the defendants seized and detained the property and that Grimbilas, the alleged owner, demanded it but was refused.

The amended complaint was filed October 7th, 1941, yet the record shows an order dated September 20th, 1941, striking the second count because "added in the amended complaint without leave of the court first had and obtained and because said second count sets up a new cause of action which had become barred by the statute of limitations." Thereafter, on September 29th, 1941, the defendants filed an answer setting up as a separate defense that while the summons bore date of September 26th, 1940, it was not delivered to the sheriff until June 18th, 1941, and, therefore, that the action was not commenced until the later date and consequently was barred by the statute of limitations. The

answer also raised the bar of the statute by an "objection and point of law" reserving the right to move the same at or before trial. To this answer, plaintiffs filed a reply consisting of a general denial. Next in point of time the record discloses an order dated October 31st, 1941, striking the reply as sham in so far as it denied that the summons dated September 26th, 1940, was not delivered to the sheriff for service until June 18th, 1941. The recital in the order last referred to sets forth that it was on a notice of motion and an affidavit annexed thereto. Neither is included in the state of case.

The record brought before us on this appeal is incomplete to an extent which would warrant a dismissal. However, we prefer to dispose of ...


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