189 Mich. 266 | Mich. | 1915
Defendants appealed from an order of the Wayne county circuit court in chancery, overruling their demurrer to complainants’ bill filed in aid of execution, which also asks discovery and injunctive restraint.
The essential substance of complainants’ somewhat lengthy bill material to an understanding of the issue, raised is as follows: On April 22, 1912, complainants recovered a judgment in the Wayne county circuit court against defendant Robert L. McMicking and R. S. Dodds, indorsers of notes given by the Norris Laundry Company, a defunct corporation, for $5,576.23 damages, with costs taxed at $22.90. On May 5, 1913, for the purpose of collecting such judgment, they caused a writ of execution to be issued and put in the hands of the sheriff of Wayne county who, on the 22d of May, 1913, levied under said execution upon 1,001 shares of stock in the defendant Standard Laundry Company, a corporation doing business in the city of Detroit, which stock at the time of the levy was owned by and stood in the name of defendant McMicking, as appears upon the records of said company and as shown by a certificate obtained from Mr. Henry, secretary and treasurer of said Standard Laundry Company; but said Henry notified the sheriff when such levy was made that said shares of stock had previously been assigned to some third party, refusing, however, to disclose to whom or at what time such assignment was made. On June 2, 1913, the sheriff gave legal notice, and duly advertised that said shares of stock would be sold, on June 6, 1913, under the levy which, he had made, at the Congress street entrance of the Wayne county building in the city of Detroit. At the
Defendants’ grounds of demurrer are:
“(1) Because the complainants have not, in and by their bill, made or stated such a case as entitles them to maintain their bill, in that the execution has not-been returned unsatisfied on the judgment obtained by them, as required by section 436 of the laws of Michigan as compiled in the year 1897.
“ (2) Because the bill in aid of execution cannot be maintained where the interest is in personal property.
“(3) Because complainants have a full, complete, and adequate remedy at law.”
Defendants’ demurrer admits the truth of the allegations in complainants’ bill. As framed, it is not a judgment creditor’s bill filed to reach equitable assets not subject to legal execution, a prerequisite of which is an execution returned nulla bona, indicating that all legal remedies have been exhausted. The bill shows: that complainants did find personal property subject, to execution belonging to one of the defendants, and levied upon it. They had an unsatisfied valid judgment
The rules applicable to judgment creditors’ bill and bills in aid of execution are not the same, neither are the latter confined to levies upon real estate. Gibbons v. Pemberton, 101 Mich. 397 (59 N. W. 663, 45 Am. St. Rep. 417); Hodge v. Gray, 110 Mich. 654 (68 N. W. 979); Schelowski v. Pawlowski, 168 Mich. 664 (134 N. W. 997); McKenna v. Crowley, 16 R. I. 364 (17 Atl. 354); Chardavoyne v. Galbraith & Co., 81 Ala. 521 (1 South. 771).
Complainants by the scheme of their bill are creditrors, with a lien invoking the original, common-law jurisdiction possessed by courts of equity to entertain suits of creditors who have proceeded to judgment and have an execution lien, which is rendered unavailable by some impedient which the debtor has fraudulently interposed to further successful progress in the action at law, and the chancery court is asked to aid in enforcing the lien by removing the fraudulent obstruction.
“In such a case equity is. resorted to in aid of the law, to enable the creditor to sell the property to better advantage.” McKenna v. Crowley, supra, where numerous authorities are cited.
That it is not necessary or proper in all cases to first. sell the property levied on at execution sale before applying to a court of equity for aid, as defendants contend should be done, is clearly indicated by the above quotation and sustained by this court in Cranson v. Smith, 47 Mich. 189 (10 N. W. 194).
“Where a lien has been acquired by levy of execution, or where there is an outstanding execution in the hands of an officer and a fraudulent obstruction is interposed to prevent its being levied, a bill may be sustained for a discovery and to remove such obstruction.”
Such we find to be the purport of this bill.
’ The order overruling defendants’ demurrer is hereby affirmed, with costs.