Euclid Avenue National Bank v. Judkins

Wood, J., (after stating the facts.) 1. Prior to the passage of the act of March 31, 1887 (Sand. & H. Dig. § 3134), the rule obtained requiring the plaintiff, in a proceeding in equity to set aside a fraudulent conveyance as to creditors, to reduce his claim to judgment at law, and have execution issued, and a return of nulla bona, as prerequisites to the relief sought. This was necessary in order to show that the plaintiff did not have a complete remedy at law. It - was the method prescribed for showing the insolvency of the debtor, and that the creditor could not collect his debt at law. Meux v. Anthony, 11 Ark. 418; Phelps v. Jackson, 27 Ark. 589; Wright v. Campbell, id. 637; Sale v. McLean, 29 Ark. 621; Clark v. Anthony, 31 Ark. 548; Hunt v. Weiner, 39 Ark. 74. The act of March 31, 1887, supra, provides “that in suits to set aside fraudulent conveyances, and to obtain equitable garnishments, it shall not be necessary for the plaintiff to obtain judgment at law in order to prove insolvency, but in such cases insolvency may be proved by any competent testimony, so that only one suit shall be necessary in order to obtain the proper relief.” The design of this act was, not to do away with the necessity of showing insolvency to entitle one to the equitable relief, but only to broaden the methods of proving it. The statute makes unnecessary the expense and delay incident to obtaining judgment and the issuing and returning of process thereon when insolvency—the ultimate fact to be established—may be proved by other and more direct methods. Riggin v. Hilliard, 56 Ark. 481. The old and familiar rule that, before one can seek relief from a court of equity, he must show that he does not have a complete and adequate remedy at law still prevails in this state. Section 3034 of Sand. & H. Dig. provides that “on a judgment or decree against several, the execution must be joint.” Now the complaint in this case shows that plaintiff's judgment was against the White Sewing Machine Company and H. R. King, as well as against the defendant Judkins, and there is no allegation that the White Sewing Machine Company and King were sureties merely. They appear as joint principals. The complaint shows that Judkins had “no property whatever left in his hands subject to execution, out of which plaintiff's debt could be made by law,” but it does not show that the other joint judgment debtors, the White Sewing Machine Company and H. R. King, did not have property subject to execution ample to satisfy plaintiff’s debt at law. The complaint did not allege the insolvency of these joint judgment debtors with Judkins. Herein it fails to show any occasion for the interposition of a court of equity. The complaint shows that the bank had already obtained judgment against Judkins, the White Sewing Machine Company and H. R. King. Under the statute of 1887, supra, the obtaining of judgment at law was not necessary, but it was necessary to show the insolvency of all the joint judgment debtors; for, in the absence of such an allegation, or a showing of some other facts calling for equitable relief, it does not appear that a resort to equity is proper. Davis v. Fire Ins. Co., 63 Ark. 412. See Howard v. Sheldon, 11 Paige, Ch. 558; Child v. Brace, 4 ib. 309. The demurrer was properly sustained. Affirmed.