Durand & Co. v. Gray, Kingman & Collins

Mr. Justice Scholfield delivered the opinion of the Court: So much of section 49 of our Chancery Code (Rev. Stat. 1874, p. 203, et seq.,) as provides that “whenever an execution shall have been issued against the property of a defendant, on a judgment at law, * * * and an execution shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery against such defendant, and any other person, to compel the discovery of any property or thing in action belonging to the defendant,” etc., introduces no new principle, and is but affirmative of the common law. (Bispham’s Eq. 2d ed. secs. 525, 526, et seq.; 4 Am. &Eng. Encyclopedia of Law, p. 576, et seq.; Ballentine et al. v. Beall, 3 Scam. 203; Miller et al. v. Davidson, 3 Gilm. 522.) Decisions, therefore, under the common law, are applicable as precedents since the enactment of this statute. Counsel for appellants contend, that because the section referred to does not say to what county the execution shall be issued, it is only necessary to issue it to the sheriff of the county in which the judgment is rendered. Perhaps, in the absence of all circumstances showing the purpose of the issuing and returning of the execution, that would he correct; hut it is not to be assumed that the law requires such a thing to be done without a purpose. We must suppose that the rights of parties affected by the litigation were in some way to be protected thereby; and it must therefore follow, that if the purpose of issuing and returning an execution can not be subserved except by issuing and delivering the execution to the sheriff of the county where he is known, or is presumed, to have property, the contention of appellants is wrong, and the decisions of the court below right. What, then, is the purpose of the issuing and returning of the execution ? The cases are all agreed in this respect. A court of equity will never lend its aid where there is an adequate remedy at law. It must, therefore, appear that a court of law is incompetent to reach the property of the defendant in execution, either by reason of its peculiar character, or by inability to discover it; and the return of an execution as to the fact of the existence or non-existence of property within the jurisdiction of the sheriff is the highest evidence, and is conclusive. And hence it is held, that to establish that a court of law is incompetent to reach the property of the defendant, it must be proved that there was a judgment at law, and that an execution was issued thereupon, and that it has been returned by the proper officer unsatisfied, by reason- of his inability to find property whereon to levy. Preston v. Colby et al. 117 Ill. 477; Dormueil et al. v. Ward et al. 108 id. 216; Ballentine et al. v. Beall, 3 Scam. 203; Miller et al. v. Davidson, 3 Gilm. 522; McDowell v. Cochran, 11 Ill. 31; Ishmael v. Parker, 13 id. 324; Newman v. Willets, 52 id. 98; McConnel v. Dickson, 43 id. 109. The purpose, then, being to establish a material fact,— namely, that the defendant has or has not property whereon an execution may be levied,—it is manifest, first, that if the plaintiff in execution knows that the defendant in execution has property in a particular county, he should send an execution to that county; second, the execution should be sent also to any and every county in which there is a legal presumption that the defendant in execution has property. If a person resides and does business in the same county, it is legally presumed that he has property there liable to execution, for ownership is presumed from possession, and insolvency is exceptional, and must always be proved. Under our statute in relation to negotiable instruments, it is, among other things, provided, that the assignor shall be liable in the event that the assignee shall have used due diligence by the institution and prosecution of a suit against the maker of the instrument. (Rev. Stat. 1874, p. 718.) There, as here, in the section of the statute referred to supra, no direction is given as to where the suit shall be prosecuted, or to what county the execution shall be issued. But this court held,, in Bestor v. Walker et al. 4 Gilm. 14, that the suit, under that statute, must be prosecuted, and the execution issued, to the sheriff of the county in which the maker of the instrument resides. In answer to the question, in what county shall the maker be prosecuted to insolvency, it was said: “We feel no-hesitancy in replying, the county of the maker’s residence, if it be known to the indorsee. It is there, more than anywhere else, that he is presumed to own property.” In Manchester et al. v. McKee, Exr. 4 Gilm. 515, it was said by Caton, J., in delivering the opinion of the court, discussing the sufficiency of the return to authorize the filing of a credit- or’s bill: “This is sufficient to entitle the party to file his bill. * * * It shows, prima facie, that he had exhausted his legal remedy. It is as much as is required, in the first instance, of a second indorser of a note, under our statute, to show, to enable him to recover of the first indorser; and in this case, as in that, the defendant might probably resist the application successfully by showing that the complainant actually knew of other property out of which he might have made his debt by execution.” This, it is true, was not said as indispensable to the decision of that case, and it is therefore obiter dictum, only; but it was the remark of an able and careful judge, and it passed unchallenged at the time by the other members of the court, and it must therefore be regarded as some, though not conclusive, evidence of what the members of this court, as it was then constituted, regarded the law to be upon this subject. In Child v. Brace et al. 14 Paige, 309, one of the questions presented was, to what county must the execution be sent to entitle the plaintiff, upon a return of no property found, to file a creditor’s bill? And the vice-chancellor said: “The true rule deducible from the decision, I apprehend to be this: that where the judgment is obtained in a court of general jurisdiction, the complainant, prima facie, to entitle himself to relief here, must show an execution issued to and duly returned by the sheriff of the county where the defendant is domiciled; or, in ease the execution is issued to another county, the complainant must, by distinct averments, and by proof, if necessary, repel the legal presumption of property in the county where the defendant has a fixed residence.” The case was appealed to the chancellor, and Walworth, chancellor, in delivering his opinion, said: “The statute is general, that whenever an execution against the property of a defendant shall have been issued on a judgment at law, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery, etc. * * * It must be recollected, however,' that this statute is only declaratory of a principle which had before been adopted in this court. It means, therefore, that the plaintiff in the judgment shall have made a bona fide attempt to collect his debt by execution against the property of the defendant. If the plaintiff is not aware of the existence of any tangible property of the defendant, it may be sufficient to issue the execution to the county in which the defendant resides, or where he was residing at the time of the commencement of the original suit against him. And if he has, in fact, no property which is subject to execution, perhaps it may be sufficient to issue the execution to the county where the venue was laid, as was done in this case. But where the judgment is in the Supreme Court, so that the execution may issue to any part of the State, if the defendant has a fixed and known place of residence at the time the execution is issued, and has visible property in the county where he resides, sufficient to satisfy the debt, it will be a good answer to the complainant’s bill that he has neglected to issue an execution to that county.” Again, in Reed v. Wheaton, 7 Paige, 663, a like question was before the same chancellor, and he said: “Where the judgment is in the Supreme Court, so that an execution may be issued to any part of the State, or where the bill is founded upon a decree of the court of chancery, the process of which may also be sent to any county, the complainant who comes into this court for relief, upon the ground that he has exhausted his remedy by execution on the judgment or decree, must show affirmatively, by his bill, that he has issued his execution to the sheriff of the county where the defendant resided at the time such execution was issued, or he must insert some other averment, showing a sufficient and legal excuse for not sending to the county where the defendant resides. If the defendant has removed from the State, or if his residence, upon diligent search and inquiry, can not be found, that may be a sufficient excuse for sending the execution to the county where he resided at the time of the commencement of the original suit against him, or where his last known place of residence was.” There was the same ruling in Merchant's Bank v. Griffith, 10 Paige, 519, and Wheeler v. Heermans et al. 3 Sandf. Ch. 597. And to like effect, also, is Smith v. Fitch, Clark’s Ch. 266. It may be, as counsel insist, that there is now a statute in New York affecting the question; but the remarks quoted were predicated upon no statute, and were simply made as announcing the common law doctrine. Our statute provides: “The person in whose favor any judgment may be obtained may have execution thereon in the usual form, directed to the proper officer of any county in this State, against the lands and tenements, goods and chattels, of the person against whom the same is obtained.” Rev. Stat. 1874, chap. 77, sec. 4, p. 622. The evidence shows that all of the property that Allen owned was at, Belvidere, in Boone county, and it was all of that kind that could be seized upon execution or reached by process of garnishment, under section 1, of chapter 62, of the Revised Statutes of 1874, page 550; and this was known to appellants before they had judgment entered against him. Their agents were at his place of business, in Belvidere, on the next two preceding days to that on which judgment was rendered against him. Allen testifies, and no one contradicts him, that Neis Allen, a traveler for appellants, came to Belvidere on the 19th of January, and then proceeds thus: “I told him how much my inventory showed. I figured up some of the bills while he was there. * * * I had a grocery store there,—groceries, flour, crockery—all such things—general store; can not say whether I showed him proportion of merchandise and accounts or not. I showed him what the inventory figured up. He saw what I had. * * * On the, 20th I met Mr. Neis Allen and Helmer at Belvidere. They said they had come out to settle up that account. I think we first went to work looking over the accounts, and looking over what I owed, and seeing about how I stood.” He further says that the value of his property in the store at Belvidere, at that time, was near $3700 or $3800. There is no pretense that there is any evidence tending to show that H. W. Allen was concealing, or trying to conceal, from appellants, knowledge of his property, or of the amount of indebtedness due him, or the names or residences of his debtors, but directly the reverse is proved. And so it is plain, that an execution in the hands of the sheriff of Boone county could have been levied, without the slightest difficulty, upon every particle of property that he owned that was liable to be seized upon execution, and that the agents of appellants, with Allen’s books open before them, had every facility that was needed to have garnishee process upon all of his debtors, and thereby to reach every dollar of indebtedness that was due to him. There was therefore not the slightest necessity or excuse for resorting to a court of equity to aid in collecting the debt. But counsel contend, this concerns Allen alone, and that he may waive all objection on account of the failure to send the execution to the proper county, and here has made such waiver. Undoubtedly, he may, by his pleading, waive proof of every allegation in the bill, so far as his rights are concerned, but he can waive nothing as to the rights of others. Executing a power of attorney, however, to confess a judgment in Cook county, manifestly waives nothing except the jurisdiction of that court to render judgment in that ease. The refusal to turn out property on execution there, certainly, when he had none there to turn out, can waive nothing beyond his right to object against the officer’s return that he had found no property in that county upon which a levy could have been made; and his voluntarily accepting service of notice of the intention to move for the appointment of a receiver, obviously waived nothing but the proper service of that notice; and it seems too plain for argument, that his assignment to the receiver, if pursuant to the order of the court, was involuntary, aryl therefore concluded him as to no objection that he might, before executing the assignment, have urged against the proceeding. Before Allen had filed answer, and before final decree was entered in the case, the rights of appellees attached to the property. Their liens upon Allen’s property had been perfected by the placing of executions in the hands of the sheriff of Boone county, and thereafter it is manifest that no act of Allen could affect rights vested by virtue of those liens. It then became a contest between creditors as to priority of rights, and, necessarily, appellees might interpose any defense which had not been waived by some act of Allen before their liens attached, for after their liens attached, and to the extent of their liens, they took the place of Allen in regard to the property, unless, indeed, it was previously occupied by appellants. From what we have hitherto said, it must he clear that Allen might, notwithstanding everything that he had done before ■appellees’ lien attached, have interposed the defense, by his answer to the hill of appellants, that they had not exhausted their remedy at law before filing the bill, and he having had that right, it passed to appellees the moment their lien to the property attached. The judgment is affirmed. Judgment affirmed.