First Nat. Bank v. Dwight

• Decision Date: 14 November 1890
• Court: Michigan Supreme Court
• Parties: FIRST NAT. BANK OF MAUCH CHUNK v. DWIGHT et al.

47 N.W. 111

83 Mich. 189

FIRST NAT. BANK OF MAUCH CHUNK v. DWIGHT et al.

Supreme Court of Michigan

November 14, 1890

Appeal from circuit court, Wayne county, in chancery; CORNELIUS J REILLY, Judge.

Wm. O. Webster, for appellant.

Wisner, Speed & Harvey, (John J. Speed of counsel,) for appellee.

GRANT J.

The complainant obtained a judgment in the circuit court of the United States for the eastern district of Michigan, and, on November 12, 1889, sued out two writs of execution directed to the marshals of the eastern and western districts of Michigan, returnable December 3d following. The writs were delivered to the respective marshals November 16th, and returned December 4th, nulla bona. Including the day of delivery and the return-day there were 19 days within which the marshals might have levied. The reason for the issuance of two writs was that some of the defendants lived in the eastern and some in the western districts. After the returns of the marshal were filed, complainant filed a judgment creditors' bill setting forth the above facts and other averments necessary to sustain such a bill. Defendants demurred on the ground that the court has no jurisdiction, because complainant had not exhausted its remedy at law by the issue and return of the executions unsatisfied. The demurrer was overruled, and defendants appeal. The statute authorizing such suits provides that whenever an execution against a judgment debtor shall have been issued and returned unsatisfied in whole or in part, the parties suing out such execution may file a bill in chancery etc. 2 How. St. � 6614. By statute, executions may be made returnable at any time not less than 20 nor more than 90 days from the time such execution shall be issued. 2 How. St. � 7664 a. A judgment creditors' bill will not be retained if filed before the return-day of the execution, nor if the execution is returned unsatisfied before the return-day. The cases all hold that a creditor must, in good faith, have exhausted his remedy at law before he can maintain the suit. Freeman v. Bank, Walk. Ch. 62; Steward v. Stevens, Har. (Mich.) 169; Smith v Thompson, Walk. Ch. 1; Thayer v. Swift, Har. (Mich.) 430; Beach v. White, Walk. Ch. 495; Tarbell v Millard, 63 Mich. 250, 29 N.W. 722. The question here involved has never before been presented to this court. Judgment debtors are entitled to have their property levied upon and sold before they can be harrassed by this proceeding. It has, consequently, been held that when an execution was issued to the sheriff of one county and returned nulla bona, the bill will be dismissed upon proof that the debtor had property in another county which was known to the complainant. Under the above decisions, the debtor is entitled to have the execution remain in the hands of the sheriff from the time of its delivery to him till the return-day. The law says that the execution must issue at least 20 days before the return-day. It cannot be considered as being...