Berles v. Comstock

Grant, J. Judgment was rendered in the circuit court for the county of Kent against the relator for $991.53 and costs. Execution was issued, and returned nulla Iona. The plaintiffs in that suit thereupon presented an affidavit to one of the circuit court commissioners of Kent county for an examination of the relator under oath, and the discovery of his property, in accordance with the provisions of How. Stat. § 8107. The commissioner made an order for the relator to appear before him at a specified time for examination. The relator then applied to the circuit court of the county of Kent for the writ of mandamus to compel the vacation of this order by the commissioner. The circuit court denied the writ, and the case is now before us for review on a writ of certiorari. The contention of the learned counsel for the relator is that the affidavit was not sufficient to authorize the issuance of the order, and to entitle the plaintiffs to an axamination of their judgment debtor, in that it showed no ground for the order other than the fact of the return of the sheriff to the writ of execution. The validity of this statute was sustained in Lee v. Circuit Judge, 101 Mich. 406. The statute is silent as to the preliminary proceedings requisite to authorize the examination by the judge or commissioner. The only prerequisite provided in the statute is the return of an execution unsatisfied, whereupon— “The judgment creditor may obtain an order from the judge of the court in which the judgment was obtained, or from -the judge of the circuit court for the county in which the defendant resides, or from the circuit court commissioner of any such county, * * * requiring the judgment debtor to appear and make discovery on oath,” etc. The object of this statute is to provide a summary and inexpensive method by which judgment creditors, after [131] the failure of the sheriff to find any property, may determine, by an examination of the debtor, whether he has property subject to execution. If such creditor were required to make a showing by affidavit that he believed the •debtor was secreting his property, or had transferred it with intent to defraud his creditors, or to specify the property, the statute would prove of no avail in many •cases. In New York and Mirinesota it is held, under similar statutes, that no such showing is necessary. Lathrop v. Clapp, 40 N. Y. 334; Kay v. Vischers, 9 Minn. 270. It is true that the statutes of those states use language different from ours, but not so different as, in our judgment, to prevent the application of the rule they have •adopted to our statute. The Minnesota statute provides that, upon the return of an execution unsatisfied, the •creditor “shall thereupon be entitled to an order requiring the judgment debtor to appear and answer concerning his property.” The statute of New York is no stronger. Neither provides for preliminary proceedings. We can see mo reason why one rule should be adopted where the statute says that a creditor “ shall be entitled,” and a •different rule where it says “he may have such order.” The purpose of all these statutes is to give a summary proceeding where the sheriff is unable to find property on which to levy his writ. A different rule prevails in North Carolina. Hinsdale v. Sinclair, 83 N. C. 343. In that state the distinction between law and equity was abolished, and in construing this statute the court recognized and adopted the proceeding provided by the former system. At page 343 is this language: “This construction of the statute on the subject of .supplemental proceedings is adopted by way of as near conformity as possible to the ca. sa. under our former system, of which it is in part a substitute, to have which [132] it was a prerequisite to exhaust all' liens by levy, and,, besides, show by affidavit the non-existence of property which could be reached by a fi. fa., and the existence of property which could not be reached by a fi. fa.” The judgment of the court below is affirmed, with costs* The other Justices concurred.