110 Mich. 262 | Mich. | 1896
( after stating the facts). It is the established rule that, before a court of equity can entertain jurisdiction to enforce a judgment at law by a creditor’s bill, an execution must be issued and returned unsatisfied. The legal remedy must first be exhausted. First Nat. Bank v. Dwight, 83 Mich. 189; National Tube-Works Co. v. Ballou, 146 U. S. 517; Hollins v. Iron Co., 150 U. S. 371. The court therefore obtained no jurisdiction by the original bill, if it be held to be a judgment creditor’s bill.
It is, however, insisted that the supplemental bill, setting forth the issue of an alias execution after suit brought and its return unsatisfied, gave the court jurisdiction. We cannot so hold. The original bill avers no ground for the interposition of a court of equity. The suit must be controlled by the situation at the time the bill was filed. Subsequent acts cannot confer jurisdiction. Putney v. Whitmire, 66 Fed. 385; Bernard v. Toplitz, 160 Mass. 162 (39 Am. St. Rep. 465).
It is also urged that the original bill can be sustained under chapter 281, 2 How. Stat. We hold otherwise.
The learned counsel for the complainant, in support of their contention, cite the following cases: Hibernia Ins. Co. v. St. Louis & N. O. Transp. Co., 13 Fed. 516; Brum v. Insurance Co., 16 Fed. 140; Blair v. Railroad Co., 22 Fed. 36, 24 Fed. 148; San Francisco, etc., R. Co. v. Bee, 48 Cal. 398; Berry v. Railroad Co., 52 Kan. 774 (39 Am. St. Rep. 381); Louisville, etc., R. Co. v. Boney, 117 Ind. 501; National Bank of Jefferson v. Texas Inv. Co., 74 Tex. 421; Vance v. Coke Co., 92 Tenn. 47; Turnbull v. Lumber Co., 55 Mich. 387. An examination of these cases discloses the fact that the question now presented was not raised in any of them. Besides, in California, Kansas, Indiana, Texas, and Tennessee the statutes authorize judgment creditors’ bills without issuing an execution. The authorities above cited are, therefore, not in point, and do not conflict with the decisions of this court. If the complainant had issued execution, the case made by her bill would have been directly within these authorities.
The decree must be reversed, and the bill dismissed, with the costs of both courts, but without prejudice.
