Wilson v. Addison

127 Mich. 680 | Mich. | 1901

Montgomery, C. J.

The bill in this case presents the double aspect of a judgment creditor’s bill and a bill in aid of execution. It alleges, among other things, that an execution was issued and returned unsatisfied, and subsequently another execution issued and levied on certain property, which is alleged, on information and belief, to belong to defendant Frederick Addison, the judgment debtor, but which, it is alleged in the bill, he pretends is partnership property, in which defendant Charles Addison has an interest. It is also alleged that this second execution has been levied on certain real estate claimed to have been conveyed by defendant Frederick Addison to defendant Anna Addison, his wife, for the purpose of hindering and defrauding creditors. A disclosure is asked for, and it is prayed that the deed be set aside. Anna Addison demurred, her demurrer was overruled, and she has appealed.

1. It is insisted that the bill is bad because the remedy against the personal property is not shown to have been exhausted. So far as Anna Addison is concerned, this is a bill in aid of execution, and is authorized by the statute (3 Comp. Laws, § 9167). See Williams v. Hubbard, Walk. Ch,, at page 29; Vanderpool v. Notley, 71 Mich., at page 428 (39 N. W. 574).

2. It is, of course, unnecessary to the relief sought

against Anna Addison that the bill should show an execution returned unsatisfied. But it does show that fact, and the issue of the later execution cuts no figure. Clark v. Davis, Har. Ch. 227, 235.

3. The bill is not multifarious. It is perfectly regular to file a bill for the double purpose- of aiding an execution and to reach property not open to execution. Beam v. Bennett, 51 Mich. 148 (16 N. W. 316); Clark v. Davis, Har. Ch. 227; Williams v. Hubbard, Walk. Ch. 28. The demurring defendant is not in position to complain that complainant has found it necessary to join other defendants in the effort to secure a lien upon sufficient property, of the judgment debtor to satisfy her claim. Hamlin v. Wright, 23 Wis. 491; Allen v. Railroad Co., 11 Ala. 437; Chase v. Searles, 45 N. H. 511; 5 Enc. Pl. & Prac. 547.

The order overruling the demurrer will be affirmed, and the case remanded, with costs of this court to complainant.

The other Justices concurred.