Mattison v. Demarest

19 Abb. Pr. 356, 1 Rob. 717

Opinion

By the Court.

Footnotes

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*—Monell, J.

The first branch of the motion was in effect abandoned on the argument.

The second branch proceeds upon the apprehension that the defendants may pay the judgment of the plaintiffs, and compel a discontinuance of the suit; in which event, the other creditors, who now seek to come in, Vould be deprived of the benefit of the present action.

The defendants have answered the complaint, and, it would seem, intend to contest the plaintiffs’ right to the relief they seek, and there is no proof before us of any intention to pay the judgment, or to procure a discontinuance of the suit.

The action purports to have been instituted by the plaintiffs in behalf of themselves, and of all other judgment creditors, who might desire to come in and participate in the benefits of the suit; and it is claimed, that the creditors now applying to come in should be deemed to be plaintiffs from the commencement of the action, and that the suit should not be discontinued with out payment of their judgments. e

This, certainly, is a novel motion, and is without precedent in the books.

It was long since decided by the chancellor (Edmeston a, Lyde, 1 Paige, 637), that a creditor might file a bill in behalf of himself and all other judgment creditors, who might choose to come in under the decree, and contribute to the expenses of the suit. It was necessary, however, that such creditors should stand in the same right with the complainant, -and that they should have had executions upon their judgments returned unsatisfied.

In the case before us, no such right is shown. On the contrary, it appears that at the time of the commencement of this action, executions upon the judgments in favor of the creditors who now apply, had not been returned. They were not, therefore, at that time, in a condition to have instituted a suit for the equitable relief demanded in this action.

The rights of creditors, for whose benefit a suit of this nature was instituted, were to come in under the decree, prove then-judgments and executions returned unsatisfied, and participate in the fund discovered by the suit. They never became parties to the suit, and were only entitled to come in after the decree. The suit proceeded to decree, in the name and upon the judgment of the original plaintiff; and he might prosecute it with dispatch, or dismiss- it altogether, at his election, notwithstanding the bill was filed in behalf of himself, and of all other cred itors. (Innes a. Lansing, 7 Paige, 583.) The reason was, that each creditor, whose execution had been returned unsatisfied, might file his bill. But the moment the decree was entered in the suit, the rights of the other creditors attached to it, and the proceedings in all the other suits were or might be stayed.

The rule then in chancery was, that notwithstanding the bill was filed for the benefit of all the creditors, the defendant might pay the judgment and costs, and procure a dismissal of the bill.

Has this rule been changed by the Code ? The right to file a bill by a creditor after the return of an execution unsatisfied, as provided in the Revised Statutes (2 Rev. Stat., 173 [marg. p.], § 38), has not been abrogated by the Code (Neustadt a. Joel, 2 Duer, 530) ; and the jurisdiction exercised by the chancellor under this statute, is now exercised by this court.

The essential ingredient in these suits, is the return of an execution nulla bona. Until this is done, the creditor has no right to claim equitable relief.

It is said that the 119th section of the Code has changed the rule. That section provides, that when the question is one of a common or general interest of many persons, &c., one or more may sue for the benefit of the whole. The provision is new, and has not, I believe, received a judicial construction as to its intended' effect. Probably it is a mere enactment of the rule of the court of chancery, and was intended to apply to those cases where parties might make a common suit. Whether this be so or not, there is nothing in the provision which gives to it the effect of depriving a plaintiff, suing for a common benefit, of all right of control over the suit. Nor does it, in my judgment, confer any power upon the court to restrain a plaintiff thus suing, from dismissing his suit.'

Creditors not' parties to the suit acquire no vested rights until the judgment, when they may come in and prove their claims. And the plaintiff and defendant must be left, until judgment, to prosecute and defend upon the principles applicable to the case, without regard to any supposed injury which the -other creditors may suffer.

In the view I have taken, it is not necessary to determine whether those creditors are in a condition to come in. Their executions were all returned after the commencement of this suit. It would seem to be quite well settled, that even after judgment they would not be allowed to prove their claims.. (Parmelee a. Egan, 7 Paige, 610; Cooke a. Smith, 3 Sandf. Ch. R., 333.)

But I can find no authority for granting the plaintiff’s motion. The rule on the subject was well settled before the Code, and the Code has not changed it.

The creditors are not without an adequate remedy. They may wait until judgment is obtained in this action, and then come in ; or bring suit at once on their judgments. If they wait, they must take the risk of having the suit discontinued on payment of the plaintiff’s judgment and costs. We cannot restrain them.

The order should be affirmed, with ten dollars costs.

Present, Boswonm, Ch. J., and Monbid, J.