The opinion of the court was delivered by
The declaration in this case is fatally insufficient in that there is in it no manifestation of jurisdiction over the defendant in the court by whom the plaintiff was appointed receiver. The authority of the judges of the several District Courts to entertain proceedings for discovery in aid of an execution accrues only upon the return of an execution against the defendant unsatisfied' and the only legal foundation for the execution is the recovery of a judgment against him in said court. Rev. Sup., § 217, p. 262. The statement of these matters of record is essential in setting forth a right of action in the plaintiff, and it is likewise necessary in order that the defendant may intelligently plead, since without such averments he has no means of knowing upon whose judgment the proceeding is predicated or for whom the plaintiff assumes to act in collecting the sum-demanded. This defect is so radical that there should, as the ease now stands, be no expression of opinion upon the other points raised. ■
Let judgment, with costs, be entered for the defendant on his demurrer.