Monroe Bros. & Co. v. Lewald

Shepheed, J. after stating the facts: The plaintiffs obtained a judgment against the defendant and instituted proceedings supplementary to execution. The Clerk dismissed the proceedings because, prior to their commencement, “Roberts & Hayes, in behalf of themselves and all other creditors ” of the defendant, had commenced a “ creditor’s bill ” against him in the said county, and that said action was still pending. At this term of the Court, in Hancock v. Wooten, we have endeavored to distinguish a “ general ” from a “judgment creditor” bill. The mere addition to the title “in behalf of alllother creditors,” &c., does not necessarily determine the true character of the action. In a general creditor’s bill all *657 of the creditors should be permitted to come in and be made parties. In a judgment creditor’s bill this is not required, and it may be instituted by one or any number of creditors who may choose to unite. They may invite others to come in and join them in the prosecution of the suit, but, unless they do so, the Court cannot, by compelling, in proper cases, the joinder of new parties, or by consolidating the action with other proceedings, deprive the original suitors, or those who have, with their consent, united with them, of any priorities they may have acquired by their superior vigilance. The commencement of such an action creates a preference by way of equitable lien as to such real estate as is sought to be subjected, and a lien also attaches upon choses in action and other personal property from the time they come into the custody of the Court through a receiver or otherwise. The preferences thus created operate, we repeat, only upon such property as is thus sought to be subjected, and hence, it may follow that several of such bills or proceedings supplementary to execution may be prosecuted at the same time without interfering with each other. When, however, they do conflict, as where the same property is sought to be subjected, or where a receiver is appointed in one proceeding of property which is the subject of another, the Court should order the proceedings to be consolidated, and they may' thus be continued, preserving the respective priorities or preferences of the various litigants. Now, if we apply these principles to the present case, it is clear that his Honor very properly reversed the ruling of the Clerk dismissing the proceedings. The case does not contain any particulars' as to the creditor’s bill of Roberts & Hayes, nor have we any idea what property is sought to be subjected therein. In the absence of anything appearing to the contrary (the debtor being alive and sued as an individual), we must assume that it is *658 a judgment creditor’s bill, and this being so, it by no means follows that the latter, which may be directed against only a part of the debtor’s property, is to exclude all other proceedings. Even if they conflicted, neither should be dismissed, but they should be consolidated as we have suggested. This would be otherwise in the case of a general creditor’s bill, in which proceeding all persons interested must be made parties, and independent actions will either be dismissed or enjoined. There is nothing in the objection that the appeal was heard by his Honor in the proper District, but in a county other than that in which the proceeding was pending. If all appeals from the Clerk were required to be so heard, infinite delay and trouble would ensue. Such is not contemplated by the Code of Civil Procedure, ch. 5, where appeals in such cases are provided for. Affirmed.