111 Me. 556 | Me. | 1914
This case comes up on exceptions to the ruling of the sitting Justice sustaining a demurrer to the plaintiffs’ bill, and denying an amendment offered by- them. The plaintiffs claim that “this is a creditors’ bill, to reach and apply, in payment of debts, property of the defendant,” brought under the last part of paragraph 9, section 6, R. S., chapter 79, which reads: “The Supreme Judicial Court has equity jurisdiction in suits ... by creditors to reach and apply in payment of a debt, any property, right, title or interest, legal or equitable, of a debtor, or debtors, which cannot be come at to be attached on writ, or taken on execution in a suit at law.” The defendant, in its brief, also concedes that the proceeding “appears to be purely a creditors’ bill in which the plain
It is then further alleged that the defendant corporation has no property of any name, kind or description “in this state which can be come at to be attached on a writ, or taken upon execution in a suit at law, and not exempt from attachment or seizure; but is the owner of the real estate described in paragraph 2 and that this real estate ought to be taken and applied in equity to satisfy
The jurisdiction of the court must, therefore, be decided upon the allegations found in the original bill. This brings us back to the original inquiry, has the court jurisdiction (i) by reason of its general equity powers; (2) by reason of authority conferred by the paragraph of the statute already cited. Under the first inquiry, it may be said, that equity is not a primary process for the collection of debts. Yet, the original bill clearly recites a proceeding for that purpose. But in order to do this, under general équity powers, it is necessary to observe certain essential preliminaries, precedent to bringing the bill. These preliminaries are wanting in the bill before us, as will appear by a reference to Baxter v. Morse, 77 Maine, 465, involving “a creditors bill to collect certain debts” as stated by the court. The opinion says: “The first objection urged by the respondents against the bill is a want of jurisdiction in the court to act because the bill contains no allegation that an execution was taken out upon a judgment and nulla bona returned thereon. This defense must prevail for the reason stated by Shepley, J., in Webster v. Clark, 25 Maine, 313, who says: “The courts of equity are not tribunals for the collection of debts.” It is further said: “The creditor’s right to relief in each case depends upon the fact of his having exhausted his legal remedies without being able to obtain satisfaction. -The best and the only evidence of this is the atcual return of an execution unsatisfied. The creditor must obtain judgment, issue an execution and procure a return of nulla bona, before
The plaintiffs do assert, however, that the case falls within the equity powers of the court under the last part of paragraph 9, section 6, R. S., chapter 79, above cited. They do not pretend to bring their bill under the very last clause of this paragraph which provides that a bill may be maintained to reach “any property or interest conveyed in fraud of creditors,” but seek to reach property “which cannot be come at to be attached on writ, or taken on execution in a suit at law.” It is undoubtedly wéll established, that if a creditor brings himself within the perview of this statute, he can maintain a bill in equity, without having first reduced his claim to a judgment and alleging the issue of an execution and a return of nulla bona. Brown v. Kimball, 84 Maine, 495; Annis v. Butterfield, 99 Maine, 189; Sneiders v. Smith, 185 Mass., 62; Donnell v. Railroad Company, 73 Maine, 567. In the last case, referring to the statute now under consideration, the court say: “The intent of the statute, therefore, is to enable a single creditor alone, without first fruitlessly exhausting all legal remedies or reducing his claim to judgment, by this one proceeding in the nature of an equitable trustee process, to establish the validity and amount of his claim against his debtor and compel the appropriation of the debtors property, of whatever kind, provided it be not exempt or within the reach of legal process, in the hands of some third person, to the payment of his debt.”
The demurrer admits all allegations well pleaded. The test question accordingly is, does the bill contain proper allegations to bring the case within the equity jurisdiction of this statute? We think not. It is apparent without further analysis that the bill contians no allegation that brings the case within the statute, except that the property sought to be reached is situated in a foreign country, beyond the jurisdiction of the court. It nowhere alleges that this
Exceptions overruled.