Kimball v. Grafton Bank

20 N.H. 347

• Court: Superior Court of New Hampshire
• Decided: January 15, 1850
• Status: Published

Opinion

Gilchrist, C. J.

If we waive, for the present, the objections taken by the petitioners to the judgment of the Court of Common Pleas, and assume that it was regularly entered as of the April term of that court, in 1849, and for the proper sums in damages and costs, it will appear that a valid execution was outstanding against them on the seventh day of July, and in the hands of the officer whose duty it was to serve it; that on the same day he made a lawful seizure of the chattels of one of the judgment debtors, who was, without any doubt that has been suggested, bound to pay the same; that on the day but one following, the Grafton Bank assigned that judgment to trustees for the benefit of its creditors, and upon the satisfaction of their claims, for distribution among the stockholders, who would, without any express provision in their favor, have been entitled to such contingent residue of the funds of the corporation, upon the termination of its corporate existence. TJpon the tenth of July, the day next following this assignment, happened an event which caused this petition to be brought, and upon which the petitioners rely as a sufficient and proper ground for the interposition of the equitable powers of this court: namely, the termination of the corporate existence of the bank by the limitation of its charter. They say that further proceedings under the execution would work injustice and wrong to them, because there is no legal judgment creditor to whom the money is due.

It is not suggested that, through any fraud or collusion, the money, if collected, is in danger of passing into hands not equitably entitled to it; that other parties than those named in the assignment of July 9 are in a position to avail themselves of the judgment; or that the assignment itself was made for improper purposes, or is in any respect inequitable ; or that there is a probability, from any cause, that the petitioners may be required to pay the debt again, after it shall have been once satisfied by the process now pending. Indeed, we may perhaps consider ourselves left to presume the contrary of all such surmises. The assignment appears to have been made for a proper purpose, and the equitable right of the trustees to receive and recover of the sheriff the money in his hands, when collected, appears to be one which the court might protect.

In Folger v. Chase, 18 Pick. 66, a bank indorsed the notes in suit, and it was held that the indorsee might maintain an action on them after the expiration of the charter, and that the defendants had no right to inquire for whose benefit the suit was brought.

And in Bank of Alexandria v. Patton, 1 Rob. (Virg.) 524, it was held that the rights of assignees, under an assignment made before the expiration of the charter, would not be impaired by that event.

The ground, therefore, upon which our interference is claimed, is the strictly technical one that the sheriff cannot legally proceed, for the want of a judgment creditor to keep alive the judgment and execution.

As to this, it is clear that upon the expiration of the charter all the rights of the corporation to appear in court, whether as plaintiff or defendant, expire likewise. Fox v. Horah, 1 N. Car. Eq. 358; Ryder v. Union Co., 7 Leigh 154.

But it was held, in Lindell v. Benton, 6 Mo. 361, although neither reason nor authorities are given, that an execution having issued while the bank had' a legal existence, the - property attached may be holden after the charter has expired.

In the analogous case of the death of a judgment creditor, after goods have been seized on execution, it is held that the execution does not abate, but that the sheriff must go on to execute the writ. 1 Sellon’s Practice 561. The case of Clark v. Withers, 1 Salk. 323, and much more fully reported in 6 Mod. 290, and referred to by Sellon, was where an administrator had recovered judgment, and delivered Ms execution to the sheriff, who seized sufficient goods. The administrator soon after died, and Clark, the debtor, sought to recover his goods. It was insisted for tbe plaintiff that tbe execution was abated, and nobody could perfect it. Not tbe executor, for be was an auter droit; nor tbe administrator de bonis non, for be was paramount and not in privity; tbe statute of 17 Car. II., e. 3, not enabling administrators de bonis non to succeed tbe administrator in cases like this. But it was held that tbe plaintiff could not recover, because it was tbe duty of tbe sheriff to proceed with tbe service of his writ, and that tbe money would belong to tbe administrator de bonis non, when collected.

These authorities are worthy of being considered asbearing upon tbe question relating to tbe powers and duties of tbe sheriff in this case : as to which, however, we do not deem it necessary to give an opinion; for if tbe law were otherwise, we do not consider tbe case a proper one for tbe equitable consideration or interposition of tbe court. Tbe injury that may result from tbe proceedings of tbe officer under tbe execution, if they be such as are described by tbe petitioners, are still not irreparable. They are susceptible of perfect pecuniary satisfaction, which may be obtained by tbe proper proceedings in tbe due course of law. 1 Story’s Eq. 32; 3 Danl. Cb. Pr. 1854, and cases in note. If a case depends upon a mere legal question, it must be determined in a court of law. Attorney General v. Utica Ins. Co., 2 Johns. Ch. 375.

With respect to tbe regularity of tbe proceedings in entering the judgment in tbe Court of Common Pleas, tbe question as to tbe quantum of damages having been referred to this court by an order of tbe Court of Common Pleas, pursuant to tbe statute authorizing such question to be transferred, a computation appears to have been made as for tbe April term of that- court, in 1848, when tbe order of transfer was made. Perhaps tbe true meaning of the order of the Superior Court would be to require judgment to be entered as of that term, and that the entry of the judgment at the subsequent term, although for the same sum, with the addition of interest, may have been owing to a misconstruction of the order. Should the parties so incline to consider it, and that the interests of any of them require the order to be amended, the court would listen to an application for that purpose; in which event the petition for the injunction would be dismissed, and the temporary injunction dissolved.

Decree accordingly.