Rankin v. Rothschild

78 Mich. 10 | Mich. | 1889

Champlin, J.

This is an appeal from the order of the circuit court of the county of Mecosta, sitting in chancery, appointing a receiver of the assets, equitable interests, and things in action of the defendant Sigmund Eothschild, upon a creditor’s bill filed by complainant, who is the assignee of Timothy Jerome and James Jerome, who recovered a judgment in the circuit court for the county of Saginaw against said Sigmund Eothschild and one Charles L. Ortmann. The bill contains the usual statements of the rendition of a judgment against Eothschild and Ortmann jointly; the issue and return of execution wholly unsatisfied as to both defendants; the issue and return of a .second execution wholly unsatisfied, before the bill was filed; the assignment of the judgment of the first execution, while the second execution was outstanding.

The bill Avas sworn to November 9, 1888, and, at the time of serving the subpcena to appear and answer upon Sigmund Eothschild, a notice of an application to the court on December 4, 1888, for the appointment of a receiver, was served upon him, upon the matter of the bill.

Sigmund Rothschild filed a separate answer, which was verified on September 3, 1888, in which he admitted the rendering of the joint judgment, and the issue and return of the execution nulla bona. He set up in his ansjver, by way of avoidance, that while the first execution was in the hands of the sheriff for collection he went to Saginaw, where the plaintiffs resided, and proposed to pay to one of said plaintiffs his half of said judgment, and thereby relieve himself from any further liability thereon, but was informed by Jerome that he had given said Ortmann an extension of four months to pay his share of the judgment, but had taken no note or any security for the same. That thereupon said-Rothschild requested and said Jerome promised not to in any way jeopardize or endanger the position of defendant by waiting four months, and that he told Jerome that he could and would point out property of Ortmann where and how the share which Ortmann ought to pay could be immediately and promptly collected, and, if insisted upon, he should pay the entire'amount of the judgment; that he could then secure himself against such payment, by reason of his knowledge of Ortmann's property, which could then be reached, and that Ortmann was then responsible for his share of the judgment; but Jerome said he would not jeopardize the position of Rothschild, and that he did not then care to take the money from both parties, because he did not need the money, and it was drawing interest; and that it was then and there agreed between Jerome, acting for plaintiffs, and defendant Rothschild, that Jerome should proceed and collect of Ortmann his share of said judgment at the expiration of said four months, or at such other time as Jerome should deem it advisable to press Ortmann for the same, and that upon doing so Jerome should notify defendant, and he promised to immediately send his half of such judgment. He admits that after this conversation an alias execution was issued, and returned unsatisfied as to both defendants, but says he was not notified, and that Ortmann has become wholly insolvent. Other .matters are set up by way of avoidance, but the above is the most relied upon. He avers his willingness still to pay one-half of the judgment, but asserts that the foregoing constitutes a good defense to the collection of the other half.

This answer, being used in opposition to the motion for the appointment of a receiver before the time for ■replying had expired, could only be treated as an affidavit.

To meet the matters set up in the avoidance, the affidavits of John Eankin and Timothy Jerome were filed, and permitted to be read by complainant. Counsel for defendant Eothschild claims that this was not permissible. But we think it was. The answer did not deny the equity of complainant's bill, except in the attempt to assert that defendant Eothschild had property liable to execution which might have been levied upon by the sheriff. But a general assertion of this kind amounts to nothing in a bill for discovery, as a judgment creditors' bill is in some respects. The defendant must state what and where the property was that the sheriff ought to, but did not, seize. The answer is silent upon these facts. Besides, the return of the sheriff was conclusive upon the defendant at this stage of the proceedings.

The judgment, as before stated, was against the defendants, i Eothschild and Ortmann, jointly. It was the duty and legal obligation for Eothschild to pay the whole as much as it was to pay one-half. He could have paid the judgment to the sheriff, or tendered it to the plaintiff, with the costs and sheriff’s fees, at any time, and then proceed for contribution against his joint obligor, if he was entitled to contribution. He does not pretend that time was extended to Ortmann upon any consideration which would make such extension binding in law. He does not claim to occupy the position of a surety. He says that Jerome told him that he had given Ortmann his word. -But this did not prevent the Jeromes from proceeding at once, or prevent Rothschild from paying and proceeding at once, against Ortmann. Aside from this, the affidavits filed in opposition to the new facts set up in the answer contradicted all such statements.

It is claimed in the brief of counsel that the affidavits were filed without notice to them, and that they had no opportunity to reply thereto. The record does not disclose that the defendant made any objection to these affidavits being filed or read. Had objection been made, and time requested, we have no doubt that the judge would have granted any reasonable demand.

Jurisdiction in chancery, as to the county in which a bill may be filed, is regulated by statute, and, under section 6612, How. Stat., the circuit court for the county of Mecosta had jurisdiction to entertain the case.

It was not necessary for complainant, as assignee of the judgment, to cause an execution to be issued and returned nulla Iona, after he became such assignee, before he could file a creditors’ bill. Gleason v. Gage, 7 Paige, 121.

Under the circumstances appearing in the bill and answer, Ortmann was not a .necessary party to the suit. The bill shows that an execution was returned against him unsatisfied, and the answer assents that he is insolvent and worthless. There is no dispute over the amount due to complainant, and there is no occasion which requires the presence of Ortmann either for an accounting or other relief between these parties. Williams v. Hubbard, 1 Mich. 446.

The judge had jurisdiction to appoint a receiver, and we think he exercised his discretion properly. The record does not afford an excuse for appealing, and, under the circumstances the order was not appealable. The appeal is dismissed, with costs, and the record will be remanded for further proceedings.

The other Justices concurred.