Stone v. Westcott

Decision Date14 March 1893
Citation18 R.I. 517,28 A. 662
PartiesSTONE v. WESTCOTT et al.
CourtRhode Island Supreme Court

Bill by Waldo H. Stone against Nathaniel W. Westcott and others. Judgment for defendants.

Littlefield & Struess, for complainant.

Joseph C. Ely and Herbert Almy, for respondents.

TILLINGHAST, J. This is a bill in which the plaintiff is endeavoring to subject the equitable interest of the defendant Nathaniel W. Westcott in the fund held by the executors of the will of Penelope N. Westcott to the payment of a judgment debt of said defendant. The bill sets forth, among other things, that the plaintiff recovered judgment against said defendant Westcott on the 25th day of February, 1893, for the sum of $125, debt, and costs of court, taxed at $12.85, which judgment is wholly unsatisfied, and that at the time of said recovery, and since then, said Nathaniel W. Westcott has never had any personal property or real estate upon which execution could be levied to satisfy said judgment. The defendants have demurred to the bill because it is not alleged therein that execution on said judgment has been issued, and returned unsatisfied, and the only question now before us therefore is whether the bill can be maintained. That the bill is demurrable is settled in this state by Smith v. Millett, 12 R. I. 60, which is merely an affirmance of the general rule appertaining to the subject, (see cases collected in 2 Beach, Mod. Eq. Jur. p. 960, note 3,) unless the case falls within some exception to the general rule there laid down. The plaintiff's counsel contends that an exception arises where, as in this case, the bill alleges that defendant has no property or estate upon which the execution could be levied, and hence that it would be an idle proceeding to go through with the form of issuing an execution, and having the same returned unsatisfied. We do not think said allegation brings the case within any of the exceptions to the general rule above stated. In Bank v. Paine, 13 R. I. 592, the defendant had absconded, leaving no legal assets which could be attached, so that a judgment at law could be obtained against him; and this court held that, as legal process was thereby rendered Impossible, the reason for said rule failed, and the plaintiff might, therefore, proceed at once to enforce his claim in equity. In Gardner v. Gardner, 17 R. I. 751, 24 Atl. 785, it was held that if the debtor be dead the creditor may proceed in equity, without first pursuing his legal remedy. I...

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6 cases
  • Fogarty v. St. Louis Transfer Company
    • United States
    • Missouri Supreme Court
    • March 17, 1904
    ... ... Railroad, 121 Ind. 124; Deep ... Mining Co. v. Fitzgerald, 21 Col. 533; Drinkout v ... Eagle Machine Works, 90 Ind. 423; Salem Stone & Lime ... Co. v. Chastin, 9 Ind.App. 453; Railroad v ... Torrey, 58 Ark. 217; Railroad v. May, 108 Ill ... 288; Clay v. Railroad, 56 ... ...
  • Crandall v. Stafford Mfg. Co.
    • United States
    • Rhode Island Supreme Court
    • December 22, 1902
  • Andrews v. O'Reilly
    • United States
    • Rhode Island Supreme Court
    • May 29, 1903
    ...with the necessity for the issue and return of an execution is a question upon which the cases are conflicting." In Stone v. Westcott, 18 R. I. 517, 28 Atl. 602. it was not alleged that the defendant was insolvent In First Nat. Bank of Shreveport v. Randall. 20 R. I. 319, 38 Atl. 1055, the ......
  • Matarese v. Caldarone
    • United States
    • Rhode Island Supreme Court
    • July 30, 1904
    ...obtained and execution thereon has issued and been returned unsatisfied. McKenna v. Crowley, 16 R. I. 364, 17 Atl. 354; Stone v. Westcott, 18 R. I. 517, 28 Atl. 662; First National Bank v. Randall, 20 R. I. 319, 38 Atl. 1055, 78 Am. St. Rep. 867; Pom. Eq. Jur. vol. 3 (2d Ed.) § 1415, and ca......
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