18 Haw. 272 | Haw. | 1907
OPINION OP THE COURT BY
This is a bill in equity by the trustee in bankruptcy of a corporation to enforce the payment of a note given to that corporation by the defendant Kalanianaole on September 8, 1902, for $518 payable six months thereafter with interest at 7 per cent, and to meanwhile have held and ultimately applied to the payment of such decree as might be obtained on the note certain shares of stock held by the said defendant in the defendant corporation, the Kapiolani Estate, Ltd. The circuit judge held that equity was without jurisdiction and dismissed the bill. The plaintiff appealed.
The statute (R. L., Sec. 1834) confers upon circuit judges equity jurisdiction in all cases therein mentioned “when the parties have not a plain, adequate and complete remedy at the common law,” and mentions among other classes of cases “bills by creditors to reach and apply in payment of a debt, any projjerty, right, title or interest, legal or equitable of a debtor, within this Territory, which cannot be come at to be attached or taken on execution in a suit at law, against such debtor.” Although corporation stock may now “be come at to be attached”' in an action at law (L., 1905, Act 84, Sec. 9, Subd. 3), neither-it nor any other property can be reached by attachment except under certain conditions which must be alleged under oath (Id., Sec. 3), which apparently cannot be done in the present case.. The question then presents itself whether judgment at law and return of execution unsatisfied are prerequisites to the bringing of a creditors’ bill under this statute as it is in equity in the absence of statute.
The first departure in Massachusetts from the application of the ordinary equity principles relating to creditors’ bills in the construction of this statute was made (in Silloway v. Colum
It is not alleged that the defendant has no other property within the Territory subject to execution out of which the debt may be collected. The circuit judge authorized air amendment of this nature to be made .provided the bill should be resworn by the plaintiff, but apparently the latter was unwilling to swear to such an allegation. The statute expressly provides that jurisdiction in equity shall attach in the enumerated classes of cases only “when the parties have not a plain, adequate and complete remedy at the common law.” The reason why an ordinary creditors’ bill does not lie until judgment has been obtained at law and execution returned unsatisfied is not solely that the legal rights may be determined in the appropriate tribunal, that is, in a court of common law, but also that there may be proper proof that the defendant has no property which can be reached by execution at law. Therefore, even if he could bring the bill without first obtaining judgment at law and without special proof by return of execution unsatisfied to show a want of property which could be reached, still he is not excused from showing such want of property in some way and must do so in order to show that he has not an adequate, plain and complete remedy at law. There is nothing in the Massa-
Another question presented by the appeal is whether counsel fees to the amount of $100 incurred in obtaining the dissolution of a temporary injunction, which was issued against the transfer of the stock, was properly allowed as damages under the injunction bond. Separate motions were made by the two defendants to dissolve the injunction two days after the suit was begun and notice was given that the motion would be presented three days later or as soon thereafter as a hearing could be had. The motions were heard and granted and the counsel fees allowed as damages two days later. On the next day a demurrer to the bill was filed, which was heard and sustained the day following, resulting in the dismissal of the bill. Apparently the intention was to allow $50 as counsel fees on each motion, but there was no reason why the defendant Kapiolani Estate, Ltd., should move to dissolve the injunction. It.was of no consequence to-it whether the injunction should be dissolved or not. It was the other defendant alone that was interested in that question..
The decree appealed from its affirmed as to the dismissal of the bill with costs and reversed as to the allowance of counsel fees as damages under the injunction bond.