First National Bank v. Dwight

Grant, J. The complainant obtained a judgment in the Circuit Coprt of the United States for the Eastern District of Michigan, and on November 12, 1889, sued out two writs of execution directed to the marshals of the Eastern and Western Districts of Michigan, returnable December 4 following. The writs were delivered to the respective marshals November 16, and returned December 4,, nulla bona. Including the day of delivery and the return-day there were 19 days within which the marshals might have levied. The reason for the issuance of two writs was that some of the defendants lived in the Eastern and some in the Western Districts. After the returns of the marshals were filed, complainant filed a judgment creditors’ bill setting forth the above facts and other averments necessary to sustain such a bill. Defendants demurred on the ground that the court had no jurisdiction, because complainant had not • exhausted its remedy at law by the issue and return of the executions unsatisfied. The demurrer was overruled, and defendants appeal. The statute authorizing such suits provides that when-, ever an execution against a judgment debtor shall have been issued, and returned unsatisfied in whole or in part, the parties suing out such execution may file a bill in chancery, etc. How. Stat. § 6614. By statute, executions may be made returnable at any time not less than 20 nor more than 90 days from the time such execution shall be issued. How. Stat. § 7664a. A judgment creditors’ bill will not be retained if filed before the [191] return-day of the execution, nor if the execution is returned unsatisfied before the return-day. The cases all hold that a creditor must, in good faith, have exhausted his remedy at law before he can maintain the suit. Freeman v. Bank, Walk. Ch. 62; Steward v. Stevens, Har. Ch. 169; Smith v. Thompson, Walk. Ch. 1; Thayer v. Swift, Har. Ch. 430; Beach v. White, Walk, Ch. 495; Tarbell v. Millard, 63 Mich. 250. The question here involved has never before -been presented to this Court. Judgment debtors are entitled to have their property levied upon and sold before they -can be harrassed by this proceeding. It has, consequently, been held that where an execution was. issued to the sheriff of one county, and returned nulla bona, the bill will be dismissed upon proof that the debtor had property in another county which was known to the complainant. Hnder the above decisions, the debtor is entitled to have the execution remain in the hands of the sheriff from the time of its delivery to him till the return-day. The law ■says that the execution must issue at least 20 days before the return-day. It cannot be considered as being issued until it is placed where it might have been executed, and some efficient act done under it. It must be issued to the sheriff or other proper officer. How. Stat. § 7664. The officer is the only one who can do such efficient act. The attorney who takes out the writ can do nothing under it. Consequently this writ was not issued 20 days before the return-day. Van Vechten v. Paddock, 12 Johns. 178; Bronson v. Earl, 17 Id. 63; Visscher v. Gansevoort, 18 Id. 496; Boss v. Luther, 4 Cow. 158; Isabelle v. Iron Cliff's Co., 57 Mich. 120. There it as much probability that the officer will find property upon which to levy during the first days of the life of the execution as during the last days. If the writ [192] may issue one clay less than the 20, it may as well issue 19 days less than the 20, and be, in fact, issued and returned the same day. If the law will not permit the officer to return the writ before the return-day, and allow it to slumber in the files of the court until after that day has passed, for the same reason it will not permit it to slumber in the hands of the plaintiff or his attorney during the first days of the 20. The complainant cannot be said* to have exhausted his remedy at law in the one case any more than in the other. It is not a question of good faith, but a question of jurisdiction. The decree must be reversed, with the costs of both courts, and the bill dismissed. Champlin, C. J., Morse and Cahill, JJ., concurred. Long, J., did not sit.