General Electric Co. v. Hurd

• Decision Date: 26 July 1909
• Docket Number: 3,151.
• Citation: 171 F. 984
• Parties: GENERAL ELECTRIC CO. v. HURD et al.
• Court: U.S. District Court — District of Oregon

171 F. 984

GENERAL ELECTRIC CO. v. HURD et al.

No. 3,151.

United States Circuit Court, D. Oregon.

July 26, 1909

The facts attending this cause, necessary to an understanding of the present controversy, are as follows:

On April 14, 1893, the Northwest Electric Company recovered a decree in this court against L. L. Hurd, defendant above, and his wife, Josephine Hurd, for the sum of $13,138.50. H. W Goode, who was a defendant in that suit, by a cross-bill recovered a decree against Hurd also for the sum of $2,694.08 Under an execution and order of sale, certain property was sold at master's sale, and the proceeds applied in part satisfaction only of these decrees. Thereupon, to wit, on November 16, 1893, a deficiency decree was rendered, in favor of the complainant and against Hurd, for the sum of $5,296.93 and also a like decree in favor of Goode for $2,006. On the 28th day of March, 1894, an alias execution was issued upon the Goode decree, upon which the sum of $934.50 was realized and the decree in his favor was satisfied to that extent, and no further. The complainant in this suit has succeeded, by assignment, to the ownership of both these decrees. Since the issuance of the last execution upon the Goode decree, the judgment debtors have had no visible property subject to execution and sale. This fact is set forth as a reason why no subsequent execution has ever been issued upon either of said decrees.

In addition to these facts, it is further alleged, by the bill of complaint herein: That, in the year 1900, S. C. Flint, by contract with the defendant Oregon & California Railroad Company, acquired the right to purchase certain real property, of large value; that Hurd, by agreement with Flint and the advancement of one-half of the purchase price of said real property, is entitled to and is the owner of a one-half interest in the contract, and is the equitable owner of a half interest in said real property; but that Flint is holding the same in secret trust for the defendant Hurd, with intent, on the part of both Flint and Hurd, to cheat and defraud the creditors of the latter--all of which matters and things concerning the contract of sale and the secret trust obtaining with reference to said real property were and remained wholly unknown to the complainant until about the 1st day of February, 1907-- and that said Hurd, and his wife Josephine, were and are insolvent.

A discovery is prayed, and that the alleged equitable interest of Hurd in the contract with the railroad company be subjected to the satisfaction of said decrees theretofore rendered against him.

The cause has been submitted upon demurrer to the bill for insufficiency.

Albert Abraham, for plaintiff.

Coshow & Rice, Wm. D. Fenton, and R. A. Leiter, for defendants.

WOLVERTON District Judge (after stating the facts as above).

The theory upon which this suit is instituted is that it is an ancillary proceeding in aid of an execution for the enforcement of subsisting decrees for the payment of money. The decrees themselves, however, have concededly become dormant; that is to say, they have become inoperative so far as the right to issue execution thereon is concerned. They may be more than dormant; they may be dead; but of this later.

By section 916 of the Revised Statutes (U.S. Comp. St. 1901, p. 684), which was enacted June 1, 1872:

'The party recovering a judgment in any common-law cause in any Circuit or District Court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are now provided in like causes by the laws of the state in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules of such Circuit or District Court; and such courts may, from time to time, by general rules, adopt such state laws as may hereafter be in force in such state in relation to remedies upon judgments, as aforesaid, by execution or otherwise.'

In pursuance of section 8 of the rules of practice in equity, this section, as it relates to remedies by execution, applies also to decrees solely for the payment of money. It may be observed, which is apparent from its reading, that section 916 adopts the remedies which were established by law in the several states at the time the section became a law; but it did not adopt subsequent enactments of the states regulating such remedies. These were left for adoption by rule of court, as the federal courts might deem advisable. So that no state law, passed subsequent to the adoption of section 916, could be effective to modify the practice then in force under federal procedure, unless it had the sanction of a rule of court. The principle has the explicit approval of the federal Supreme Court. See Wayman v. Southard, 10 Wheat. 1, 6 L.Ed. 253; Bank of the United States v. Halstead, 10 Wheat. 51, 6 L.Ed. 264; Beers v. Haughton, 9 Pet. 329, 9 L.Ed. 145.

There exist no rules of court in this jurisdiction adopting any subsequent legislation of the state of Oregon relating to the regulation of final process. In logical sequence, it is now pertinent to inquire what remedy the complainant had, or now has, for the enforcement of its decrees.

The statutory regulations in the state prior to 1872 were that immediately after the entry of judgment, the plaintiff was entitled to have the same docketed. From the date of such docketing, the judgment became a lien upon the real property of the judgment debtor. This lien lapsed at the end of 10 years from the date of entry of judgment, unless execution was issued thereon in the meantime. It was further provided that whenever, after the entry of judgment, a period of five years elapsed without an execution being issued on such judgment, thereafter an execution should not issue except as in the section prescribed. The proceeding was, by motion in the cause, addressed to the court, asking leave to issue the execution. The order of the court was required to specify the amount for which execution was to issue, and the order itself was entered and docketed as a judgment, and treated as a final record. Sections 266, 267, and 292, Deady & Lane's Civ. Code. Thus is prescribed the relief or remedy to which complainant was entitled, by way...