Curtis v. Morton, 4922.

• Court: United States State Supreme Court of Rhode Island
• Citation: 39 R.I. 331,97 A. 803
• Docket Number: No. 4922.,4922.
• Parties: CURTIS v. MORTON.
• Decision Date: 15 June 1916

97 A. 803

39 R.I. 331

CURTIS

v. MORTON.

No. 4922.

Supreme Court of Rhode Island.

June 15, 1916.

Case Certified from Superior Court, Providence and Bristol Counties.

Petition by Rensselaer L. Curtis, receiver, against James H. Morton, for the remedy supplemental to execution provided by Pub. Laws 1915, c. 1228. On certification of question from the superior court. Question certified answered in the affirmative.

Mumford, Huddy & Emerson, George H. Huddy, Jr., and E. Butler Moulton, all of Providence, for plaintiff. Waterman & Greenlaw, of Providence (Charles E. Tilley, of Providence, of counsel), for defendant.

JOHNSON, C. J. In the above-entitled cause the plaintiff has filed a petition seeking to avail himself of the remedy supplemental to execution provided by Pub. Laws R. I. 1915, c. 1228. The record of the case as stated upon the order certifying the question to this court shows that the plaintiff recovered judgment against the defendant March 30, 1914; that on October 9, 1914, an execution was issued; that this execution was returned by the attorneys for the plaintiff on October 22, 1915, reduced from the sum of $10,712.47 to the sum of $10,549.20, by the sale of collateral; that on October 25, 1915, a second execution was issued in the sum of $10,549.20; that on October 27, 1915, the execution was returned by the officer charged therewith, as follows:

"There being no goods, chattels, or real estate of the within-named defendant upon which to levy this execution, having made demand upon the said defendant for the sum due herein, and he refusing to pay the same, I herewith return this to court wholly unsatisfied."

November 1, 1915, the plaintiff filed his application for supplemental relief, and the citation was issued returnable November 16, 1915. The return day of the execution was April 25, 1916. The case is certified to this court by the presiding justice of the superior court, because in his judgment the objection raised by the defendant ought to be determined by this court before further proceedings. The question certified is as follows, after reciting the record:

"Under the facts as set forth above, is plaintiff entitled to summon the defendant and subject him to examination under the provisions of chapter 1228 of the Public Laws of Rhode Island, passed at the January session, 1915; the defendant objecting thereto on the ground that the execution was prematurely returned?"

Chapter 1228 of the Public Laws of Rhode Island, passed at the January session, 1915, provides in part:

"Section 1. On the filing of an application by a judgment creditor, execution on whose judgment has been returned nulla bona, the clerk or a justice of the court rendering said judgment shall issue a citation to the judgment debtor to appear at a time and place named therein to show cause why an examination into his circumstances should not be made and a decree be entered ordering him to pay such judgment in full or by installments, weekly, monthly or otherwise."

Section 6 of chapter 303 of the General Laws of Rhode Island of 1909, reads as follows:

"Sec. 6. Every execution issued by the Supreme or Superior Court shall, unless otherwise specially provided therein, be made returnable thereto six months from the date of such execution, and shall be returned by the officer charged therewith; and if the officer shall not return the same within that time, he shall be liable therefor as by law prescribed."

There is nothing in the language of this statute which forbids the return of an execution before the expiration of the six months from the date of issue. The effect of the fixing of a time for the return is to give the officer charged therewith until that time to search for, and if possible discover, property on which to levy, and if he does not return the same "within that time" he is made "liable therefor as by law prescribed." The rule as to the time of return of executions is stated in 17 Cyc. pp. 1368, 1369, as follows: "An execution should regularly and properly be returned at the time fixed by law and designated in the writ; but, while this is the rule, the officer may in many jurisdictions return the execution before the return day, even unsatisfied, where he has been unable after diligent search to find property subject to the writ, and it has been held that where the ends of justice will be furthered thereby, and there is no evidence that the sheriff can derive any advantage from holdins the execution until the return day, it is within the power of the court to compel an earlier return."

This rule is supported by the following cases: Lord v. Townsend, 5 Har. (Del.) 457; Wilcox v. Ratliff, 5 Blackf. (Ind.) 561; Buist v. Savings Bank, 4 Kan. App. 700, 46 Pac. 718; Wheeling Pottery Co. v. R. Levi & Co., 48 La. Ann. 777, 19 South. 752; Ward v. Whitfield, 64 Miss. 754, 2 South. 493; Tyler v. Willis, 33 Barb. (N. Y.) 327.

In Wilcox v. Ratliff, supra, the execution was issued March 3d, and returnable in 30 days. On March 13th it was returned nulla bona. The court said in part, at page 562:

"It is also contended that the constable should not have returned the execution nulla bona, without taking the time allowed by law to find property. But there is no ground for this objection. When a constable, having in his hands a fieri facias, has made one full examination for goods without success, he is at liberty to return the execution nulla bona."

In Buist v. Savings Bank, supra, the return had to be made within 60 days. The court (4 Kan. App. at page 704, 46 Pac. at page 719) said:

"It is true that the officer is, under the statute, allowed 60 days in which to make the levy, and he cannot be compelled to return the execution prior to the expiration of that time; still we know of no reason why he may not very properly return the writ before the expiration of the 60 days, if after * * * diligent search he is unahle to find any property upon which to levy, and his return showing that fact would be at least prima facie evidence that no property could be found subject to execution."

In Pottery Co. v. Levi & Co., supra (48 La. Ann. at page 780, 19 South. at page: 753), the court says:

"When it is evident that a defendant has no assets subject to the writ, there is no reason for delaying the return and preventing recourse to other remedies."

In cases involving relief supplemental to execution, the same rule has been applied. Thus in Whitehead v. Hellen, 74 N. C. 679. where an execution, issued at the fall term, 1874, and returnable at the spring term, 1875, was returned in November, 1874, unsatisfied, the court (page 682) said:

"Can a sheriff, who has in his hands an execution issued from full term, 1874, returnable to spring term, 1875, return the same in vacation, or must he hold it until term time and return it to court? This question being determined, everything else, in this case, will follow as a matter of course. If an execution be satisfied soon after the adjournment of the court from which it issued, why should the sheriff be compelled to retain the money in his own hands until the term to which the execution is returnable? Would it not be better for all concerned that he should pay the money, either into office or to the party entitled thereto? And if, on the other hand, it be apparent that nothing can be found out of which satisfaction can be had, why may he not return the execution 'unsatisfied,' at any time before the regular term of court? That is the limit beyond which he may not delay, but there is no good reason why he should delay so long, if no useful purpose is to be served thereby."

To the same effect are the following cases, where the execution was returnable within a specified number of days: Messenger v. Fisk, 1 Code Rep. (N. Y.) 106; Simpkins v. Page, 1 Code Rep. (N. Y.) 107; Livingston v. Cleveland, 1 Code R. N. S. (N. Y.) 54; Forbes v. Walter, 25 How. Pr. (N. Y.) 166; Tomlinson & Webster v. Shatto (C. C.) 34 Fed. 380.

Some courts have taken a different view. In Dillon v. Rash, 27 Mo. 243, the court said:

"Regularly an execution cannot be returned before the return day. If search is made and no property is found, it does not follow but that the defendant may have property before the return day of the execution. He may acquire it after the return is made."

In Marks v. Hardy, 86 Mo. 232, the court said:

"Authorities may be found to support the plaintiff's view in this case, but the better doctrine is that, when the execution by law has a fixed return day, it should not be returned before that day."

To the same effect are Huhn v. Lang, 122 Mo. 600, 27 S. W. 345, and Schermerhorn v. Conner, 41 Mich. 374. 1 N. W. 955.

Defendant's counsel cite cases to the effect that a creditors' bill cannot be filed or maintained where the execution has been...