Woodward v. Hall

• Decision Date: 07 January 1890
• Citation: 75 Wis. 406,44 N.W. 114
• Parties: WOODWARD v. HALL.
• Court: Wisconsin Supreme Court

75 Wis. 406

44 N.W. 114

WOODWARD

v.HALL.

Supreme Court of Wisconsin.

Jan. 7, 1890.

Appeal from circuit court, Chippewa county; R. D. MARSHALL, Judge.

This was an action by Francis W. Woodward against Michael Hall, in the Chippewa circuit court, wherein summary proceedings supplemental to an execution were instituted under section 3030, Rev. St. Wis. 1878, which provides that, “when an execution against property of the judgment debtor * * * is returned unsatisfied, in whole or in part, the judgment creditor, at any time after such return is made, is entitled to an order from the judge of the court, or a county judge or court commissioner of the county to which the execution was issued, requiring such judgment debtor to appear before him, and answer concerning his property. * * *” An order was entered dismissing the proceedings, and plaintiff appeals.Gores & Miner, for appellant.

Stafford & Connor, for respondent.

COLE, C. J.

The appellant obtained a judgment against the respondent, in the circuit court of Chippewa county, in November, 1877. An execution was issued on this judgment, July, 1878, which was returned wholly unsatisfied. So the matter stood until January, 1889, when an alias execution was issued, and some real estate belonging to the judgment debtor was levied upon to satisfy the execution. In February, 1889, supplementary proceedings were instituted under section 3030, Rev. St., and the judgment debtor was required to appear before a court commissioner to answer on oath concerning his property. The respondent appeared in obedience to the order, and, by his counsel, moved that the proceeding be dismissed. The motion was granted, and, on a rule to show cause why the dismissal should not be vacated, the circuit court affirmed the order of dismissal.

A point is made here as to the sufficiency or regularity of the proceeding requiring the judgment debtor to appear and answer before the court commissioner. We shall not consider whether or not the point is well taken, inasmuch as we are clear that the order of dismissal must be affirmed on the merits. This court has uniformly held that the summary proceeding, like the one before us, supplementary to an execution, since the adoption of the Code, was a subsitute for the old creditors' bill in equity, and was substantially governed by the rules applicable to that remedy. Kellogg v. Coller, 47 Wis. 650, 3 N. W. Rep. 433. Many of these cases are referred to in Simmons' Digest, under the head of “Supplementary Proceedings.” To maintain a creditors' bill, it was essential that the judgment creditor should have exhausted his ordinary remedy by the issue, in good faith, of an execution, making a reasonable and diligent search for leviable property, and a return of such execution unsatisfied in whole or in part. In this case, it will be noticed that the judgment creditor waited more than 10 years after the execution was returned unsatisfied before he instituted the proceeding, under section 3030, Rev. St., for the judgment debtor to appear and answer. It seems to us, after an execution has been returned unsatisfied, that the supplementary proceeding for the examination of the debtor should be commenced within a reasonable time, while the presumption that the debtor has no property liable to sale upon execution may be fairly said to continue. After a period of 10 years, no such presumption could arise; for it is a matter of common experience that within that time large estates are often acquired. So, while it might be perfectly true, when the first execution was returned unsatisfied, that the debtor had no property liable to sale upon it, yet it by no means follows that he had not ample tangible property to satisfy an execution when this proceeding was commenced. And, it being essential that it appear that the creditor cannot collect his judgment by the ordinary remedy before he resorts to the proceeding given by section 3030, Rev. St., it is a matter of grave doubt whether that fact was shown in the case. But counse...