Schermerhorn v. Conner

Decision Date03 July 1879
Citation1 N.W. 955,41 Mich. 374
CourtMichigan Supreme Court
PartiesJOHN W. SCHERMERHORN v. MARC W. CONNER.

Where an undertaking provided that a party thereto should be liable only after all legal means to collect the note, with reference to which it was given, had been exhausted, held, in an action thereon, that it was necessary to show that all legal steps had been taken, and that it was not sufficient to offer to show that they would be fruitless if taken.

MARSTON, J.

Under the clear and explicit terms of the undertaking of defendant, upon which this action was brought, he could only be held liable when all legal means to collect the note against the Hatchels had been used. This required the plaintiff to show that he had fully exhausted his remedy at law by the recovery of a judgment, the issue and return, at the expiration of the time fixed for a return, of an execution unsatisfied in whole or in part, and where permitted the filing of a transcript in the circuit court, and the issue and return of an execution therefrom. An offer to prove that such proceedings would be fruitless, for want of property, would not be a use of all legal means, and could not supply the place of the usual and proper remedies to enforce collection.

The judgment must be affirmed, with costs.

(The other justices concurred.)

To continue reading

Request your trial
8 cases
  • Himmelberger-Harrison Lumber Company v. McCabe
    • United States
    • Missouri Supreme Court
    • May 18, 1909
    ...better doctrine is that when the execution by law has a fixed return day, it should not be returned before that day. [Schermerhorn v. Conner, 41 Mich. 374, 1 N.W. 955; Adams v. Cummiskey, 4 Cush. 420; Roberts Knight, 48 Me. 171.] This is in accord with prior rulings of this court, from whic......
  • Wall v. Eccles
    • United States
    • Utah Supreme Court
    • December 30, 1922
    ...support of this contention appellant relies on the following cases: Allen v. Rundle, 50 Conn. 9, 47 Am. Rep. 599; Schermerhorn v. Conner, 41 Mich. 374, 1 N.W. 955; Bosman v. Akeley, 39 Mich. 710, 33 Am. Rep. 447; Summers v. Barrett, 65 Iowa 292, 21 N.W. 646. The solution of this question al......
  • Curtis v. Morton
    • United States
    • Rhode Island Supreme Court
    • June 15, 1916
    ...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. Defendant's counsel cite cases to the effect that a creditors' bill cannot be filed or maintained where the execution has......
  • Moll v. Mkt. St. Bank
    • United States
    • Missouri Supreme Court
    • October 31, 1883
    ...cited 2 Parsons on Contracts, (6 Ed.) p. 499; Wescott v. Fargo, 61 N. Y. 543; Building Asso'n, v. Platt, 5 Duer (N. Y.) 675; Schermerhorn v. Conner, 41 Mich. 374; Torrey v. Bank, 9 Paige 650; Michond v. Girod, 4 How. (U. S.) 556; 1 White & Tudor L. C., pt. 1, 251; Cumberland, etc., v. Paris......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT