18 Mont. 45 | Mont. | 1896
One ground urged for sustaining the demurrer is that the complaint does not state that an execution upon the original judgment of Ryan against the partnership of Spieth & Krug was ever issued and returned unsatisfied. One of the allegations of the complaint is-as follows: “That to issue an execution in this case, and to have it returned, would be productive of no good, and would only incur costs without result; that there is no property of Chas. Krug, Jacob F. Spieth, or Spieth & Krug subject to execution, or that can be found.”
Furthermore, it appears by the complaint, that the partnership of Spieth & Krug, and the individual estates of the two partners, were absolutely insolvent, and that their effects were eaten up by other creditors, and by the alleged embezzlements of Barbara Spieth. There could be no plainer case of the absolute uselessness of an execution. In the case of Merchants’ National Bank v. Greenhood, 16 Mont. 394, we did not decide whether the issuance of an execution, and its return unsatisfied, were necessary to support a creditors’ bill; but we quoted with approval the following from the case of Case v. Beauregard 101 U. S. 688.
“It is no doubt generally true that a creditor’s bill to subject his debtor’s interests in property to the payment of the debt must show that all remedy at law had been exhausted. And, generally, it must be averred that judgment has been recovered from the debt, that execution has been issued, and that it has been returned nulla bona. The reason is that, until such a showing is made, it does not appear in most cases that resort to a court of equity is necessary. Or, in other words, that a creditor is remediless at law. In some cases, also, such an averment is necessary to show that the creditor has a lien upon the property he seeks to subject to the payment of his demand. The rule is a familiar one that a court
In the case at bar it appears by the complaint that there is no property subject to execution as clearly, and indeed more clearly and fully, than it would appear by the
The defendants further contend that the complaint is fatally defective in that it does not appear that plaintiff’s claim against the firm of Spieth & Krug has been presented to the administratrix of the Spieth estate under the rule of probate practice. But in this action no relief is sought against the administratrix. Barbara Spieth is named as administratrix in the title of the case, and alleged to be such in the body of the complaint, but the relief sought against her is strictly personal. She is charged with embezzlement and conversion of the funds of the estate, and the prayer is that she be made to account for them in equity. The question is not one of a claim to be presented to an administrator for an allowance, but is rather an effort to require a person who has converted the funds of an estate to account to a creditor of the estate. (Krueger v. Spieth, 8 Mont. at page 489.)
Again, appellant contends that the complaint is defective in that it does not state that the plaintiff is the owner of the judgment, and that the same is unsatisfied. We are of opinion that in this respect the complaint is defective. Certainly, the plaintiff could not require an accounting from Mrs. Spieth for funds of the estate embezzled by her, unless the plaintiff were a creditor of the estate. She would be obliged to prove this upon the trial as a material element to support her action. She should, therefore, allege it. The pleading that the plaintiff had once obtained a judgment is not pleading that she still owns it or holds it, and that the same is unpaid. In this respect the demurrer must be sustained.
Therefore, while we must approve the ruling of the district
Remanded.