Earle v. Grove

• Decision Date: 10 June 1892
• Citation: 52 N.W. 615,92 Mich. 285
• Court: Michigan Supreme Court
• Parties: EARLE v. GROVE, Circuit Judge.

52 N.W. 615

92 Mich. 285

EARLE v. GROVE, Circuit Judge.

Supreme Court of Michigan

June 10, 1892

Application for a writ of mandamus by J. Edward Earle against William E. Grove, Kent circuit judge. Writ denied.

W. W. Hyde, for relator. Bundy &amp Travis, for respondent.

MORSE C.J.

This is an application for a writ of mandamus to set aside an order permitting the complainant, in a case pending in the Kent circuit court, in chancery, to amend the bill of complaint, and directing that the temporary injunction issued upon the original bill be continued until a final hearing of the cause. The complainant, the Sligh Furniture Company obtained a judgment in the state of New York, in 1882, for $979.06, against Lyman H. Kendall. At the time the bill was filed Kendall lived in Illinois. His father, Henry D Kendall, died, and left an estate in Kent county, Mich., of which the relator is administrator. Lyman Kendall has an interest in said estate as heir at law. The bill, as originally filed, averred the insolvency of Lyman and that the complainant had no remedy at law against him, and prayed for an order that a receiver be appointed to receive from the estate of said Henry D. Kendall that portion of the estate belonging to Lyman, to apply in satisfaction of said judgment. The bill made Earle and Lyman H. Kendall defendants. Upon the filing of such bill a preliminary injunction was granted, restraining the relator from transferring or paying over to Lyman any portion or interest he might have in his father's estate until complainant's debt should first be satisfied. Relator demurred generally to the bill. The circuit judge held the demurrer good, but gave leave to the complainant to amend its bill, and continued the injunction. This decision was announced orally January 4, 1892. No written order was made at that time. January 11, 1892, the parties, by their solicitors, appeared before the judge, and discussed the form of the order, and complainant's solicitors submitted their proposed amendments to the bill. On the 14th of the same month a written order was signed by the judge, and entered, sustaining the demurrer, but permitting the proposed amendments, and continuing the injunction. January 16th the relator moved to amend the order by striking out that part of it permitting the amendments and continuing the injunction, and inserting a direction therein that complainant's bill be dismissed, with costs to defendants. This motion was denied. The objection made to the original bill was that it did not show that the complainant had exhausted its remedy in law. There was no averment in the bill that any execution had ever been issued on this judgment and returned unsatisfied. The circuit judge thought that this objection was good, but held that it was not necessary that the complainant obtain a Michigan judgment against Kendall, but that, if it had pursued its remedy at law under the New York judgment far enough to obtain an execution and return that it was unsatisfied, this would be a sufficient showing to authorize the filing and maintenance of the bill. The complainant contended in the court below that the facts averred that service of legal papers upon Kendall could not be had in Michigan; that he had no property in this state, subject to attachment, garnishment, or any process from a court of law; and that he was insolvent, and had been ever since the rendition of the New York judgment,-were sufficient to give the equity side of the court jurisdiction, and to give complainant relief as prayed. The amendments to the bill in substance meet the objections of the circuit judge to the original bill by alleging that an execution had been issued and returned unsatisfied on the New York judgment.

As the case is before us upon the amended bill, we do not consider it necessary to determine whether the original contention of the complainant was good, but will concern ourselves only with the question properly before us. Relator's counsel contends: First. That the amendments allowed entirely change the nature of the bill, and that, as there was found to be no equity in the first bill, the court had no jurisdiction to continue the injunction, or permit such a radical change in the character of the controversy. Second. That the bill is filed to do what might be done at law in ordinary cases by garnishment; but inasmuch as an administrator cannot be garnished by law in this state, it is sought by this bill to obtain a garnishment in equity; and it is argued that, if it is against public policy to allow administrators to be garnished at law, there can be no good or valid reason why garnishment in equity should be permitted. Third. That the averments of the amended bill show that the execution was issued on said judgment in New York, September 5, 1882, placed in the hands of the sheriff September 11, 1882, and that it was returned unsatisfied September 13, 1882, which, under our laws, would not be sufficient, as said execution was made returnable 60 days from date. In relation to this third contention it is alleged in the bill that such return was sufficient, under the laws of New York, to maintain a creditors' bill, and it was not necessary that the sheriff should...