Hodge v. Gray

Grant, J. (after stating the facts). The bill is one in aid of an execution. The demurrer is general. Two objections to the bill are claimed: First, that it does not show that complainant has exhausted his remedy at law, in that he has not proceeded against the Botsfords, or shown that they are insolvent; second j that the Botsfords should be made parties to the suit. The objections are not tenable. The levy is upon the land claimed to belong to Mr. Gray. A fraudulent incumbrance upon it is an obstruction to complainant’s levy, which he asks to have removed. In this issue the other defendants to the judgment at law are not interested, and therefore need not be made parties. Neither is it necessary to allege insolvency of any of the defendants, nor to show that he has exhausted his remedy against them. The rule which obtains in judgment creditors’ bills does not obtain in bills in aid of execution. First Nat. Bank v. Tyler, 55 Mich. 297; Gibbons v. Pemberton, 101 Mich. 897 (45 Am. St. Rep. 417). Further citation of authorities is unnecessary. The decree is affirmed, with costs. The other Justices concurred.