14 Mo. App. 331 | Mo. Ct. App. | 1883
delivered the opinion of the court.
The statute provides (Rev. Stats., sect. 736) that: “If execution shall have been issued against any corporation, and there can not be found any property or effects whereon to levy the same, then such execution may be issued against any of the stockholders, to the extent of the amount of the unpaid balance of such stock by him or her owned; provided, always, that no execution shall issue against any stockholder, except upon an order of the court in which the action shall have been brought or instituted, made upon motion in open court, after sufficient notice in writing to the person sought to be charged.”
Defendants Frost and Holliday are judgment creditors of the Butchers and Drovers’ Bank; they both moved for execution against Knight, a stockholder of that bank. Knight paid into court the amount unpaid on his shares, and, on his petition, the court required the two judgment creditors to interplead for this sum. On hearing, there was a decree in favor, of Frost.
The facts are admitted, and, so far as material, they are as follows: —
The interpleader, Holliday, caused execution to be issued on March 8, 1881, returnable to the April term, and the execution was returned on the next day nulla bona, by order of plaintiff’s attorney. Holliday gave notice to the stockholder on March 16th. Frost caused his execution to be issued on
On the hearing, Holliday introduced in evidence a series of executions against the bank, to the April, June, October, and December terms, 1881, of the circuit court, all returned nulla bona. The trial judge found as a fact that the bank was shown to have no property subject to execution, at the time Holliday’s execution was returned.
The statute does not, in terms, require a return of nulla bona upon the execution. Undoubtedly, the return of the sheriff will usually be the best evidence that the corporation has no goods. But it is not the only evidence. We held in Marks v. Hardy (12 Mo. App. 595), that, where execution had issued against the stockholder, though there was no positive return of nulla bona upon the execution, if the fact- appears that there were no goods, there is sufficient basis for the motion.
We see no reason to depart from what was said in that case, that, “.if the plaintiff, by any competent evidence satisfy the court of this condition, the law will be fulfilled.” Execution must undoubtedly issue, because the statute expressly prescribes this ; but the law does not say, “ if the execution be returned nulla bona,” but, “ if there can not be found any property whereon to levy.” Appellant brought himself clearly within the letter of the law; and, as we think, also, within its spirit. If, before the return day, the sheriff becomes satisfied, after due search and inquiry, that he can discover no property, and returns his writ at once, and before the regular day, it is held in many States, that such a return will support supplemental proceedings, under statutes requiring a return. Freem. Ex., sect. 399. A fraudulent and collusive return, made at the instigation of plaintiff, would, of course, be set aside on proper application. But, when the return is shown to be
The case, though not the same, derives illustration from those cases which are decided under statutes giving to a judgment creditor the right to proceed by scire facias against the sureties of the debtor, or to apply for equitable relief against the debtor. A debtor ought not to be harrassed by a suit in chancery where he has property that may be reached at law during the life of the execution; and when the plaintiff comes into chancery for relief, he must first have exhausted his legal remedy. Statutes giving this equitable relief, usually provide for a return of nulla bona upon the execution before the equitable relief cau be had. But, even under these statutes, it is not uniformly held that the return must be made upon the return day of the execution. Nor is it held that a return before the day is an , absolute nullity.
The learned author of a well known treatise on Executions (Freem. Ex., sect. 353) uses this language: “In New York, the rule has been established by frequent adjudications, that the officer need not keep his writ until the return day. “If he feels confidentthatthe defendant has no property subject to execution, and is willing to assume the onus of establishing this fact, he may, before the return day, return the writ unsatisfied. Such a return-, when made in good faith, is valid, and wjll support subsequent writs and proceedings, to the same extent as if it were made on the return day. The rule thus established in New York is in opposition to the majority of the authorities elsewhere.” (At section 399, it is said, in the same treatise, that the weight of authority is with the New York case.) “ The fact that the defendant has no property subject to the writ when it comes to the officer’s hands is, it is claimed, no assurance that he will continue to have none until the return day. It is also insisted that the time given to return a writ is designed partly for the benefit of the defendant, in order that the officer may not be forced
In support of what is said as to the rulings in Missouri, Mr. Freeman cites only Dillon v. Rash (27 Mo. 243). That caséis also cited by counsel for respondent, and urged upon our attention as conclusive in his favor. But we do not think it can be considered so. The case was this : Execution was issued on the judgment of a justice of the peace, and returned nulla bona before the return day; and, on the day on which it was returned, execution was issued on a transcript of the same judgment, filed in the circuit court clerk’s office. The supreme court held that the latter execution should be quashed on motion. Judge Scott, in delivering the opinion of the court, says, that the proceeding has the appearance of a design to deprive defendant of an advantage secured to him by law, which is intended to show indulgence to the debtor. Regularly, an execution can not be returned before the return day. Defendant may have property before that time. The court holds, that a construction of the statute by which judgment may be had,
In Kentucky, Under a statute providing for a remedy bv creditor’s bill whenever the fieri facias “ shall issue to the proper officer, and be returned, as to whole or any part thereof, in substance, that the defendant hath no effects in his bailiwick to satisfy the same,” though the statute of executions provided that there should be not less than thirty, nor more than ninety days between the teste and return day of the execution, and the execution was returned nulla bona in two days, it was held that this return, though irregular, was not null and was sufficient to authorize the filing of a bill to reach the debtor’s choses in action. Dana v. Banks, 6 J. J. Marsh. 219.
But, whatever view may be adopted as to the question whether or no a return of nulla bóna made before the return day ought, in an ordinary case, to support ulterior proceed
Skrainka v. Allen (76 Mo. 384), decides that the stockholder is to be charged on the stock held by him at the date of the return of nulla bona, and not only on that held by him at the time the motion was filed. This supposes a return. But it does not necessarily suppose a return at the regular return day of the execution. That case is based, so far as this point is concerned, upon the English case of Nixon v. Brownlow. The English statute is the one under consideration in Skrainka v. Allen, and here, for we have adopted the statute from England word for word. In Ilfracombe Railway Co.
The English case just referred to seems to be directly in point. It decides that to entitle the judgment creditor to a scire facias against a shareholder under the act, it is not necessary that the sheriff’s return to abortive writs should have been actually filed. The writs had been returned, according to the English practice, to the attorneys who issued them. It is evident that there was no regular return until the writs had been filed. Counsel who showed cause against the application for a scire facias stated in court, and filed affidavits, to the effect, that search had been made, and no record had been made of the execution against the corporation. It was argued that the return operates nothing until filed, and that until filed, there could be no action for false return against the sheriff. It is evident from the whole proceeding, as reported, that the sheriff had indorsed his return upon the writs which were in court, but that the writs had not been returned. The irregularity in that case seems to be as great as that in the case at bar. Here, as in that case, the return was made, in the sense that the sheriff had indorsed it upon the writ; but the writ had not been regularly returned in the English case, any more than in the one before us.
2. In the view that we take of the law, it now becomes necessary to consider the effect of another and further state
Does this filing of a second motion by Holliday work an abandonment of his first motion, and thus give precedence to Frost?
This second motion has been dismissed. The institution of the first proceeding furnished an excellent and sufficient ground that the second should abate. But we can see no reason why the filiug of the second motion should work any prejudice to any precedence gained under the first,which appellant did not abandon, but prosecuted it.
We are cited by respondent to two cases. But we think that neither of them sustain his position. It is held in Ramage v. Clements (4 Bush (Ky.), 161), that one who obtained a voidable judgment against a minor by whom no defence was made, and who caused the action to be again placed on the docket, and another summons issued, could not, after the defendant had appeared to the second action and defeated plaintiff in a trial, retreat from that defeat, disregard the last judgment, and enforce the previous one, which was voidable in its inception, and to which the second trial showed that plaintiff was not entitled.
The Connecticut case (Turner v. Davis, 48 Conn. 397) goes to this, that a plaintiff can not at the same time pursue two remedies inconsistent with each other, and that, having elected to treat B. as in possession of the premises in controversy, he can not, at the same time, proceed upon the inconsistent and contradictory theory that A., and not B., is in possession. When the essential facts on which
We are of opinion that, upon the admitted facts of the case before us, the decree should have been for appellant, and the judgment will be accordingly reversed, and the cause remanded to the circuit court with directions to enter a decree that the interpleader Holliday is entitled to the fund paid into court after deducting therefrom the costs of the proceeding up to the date of the appeal.