Merchants' Nat. Bank of Chicago v. Sabin

U.S. Circuit Court for the District of Minnesota

Merchants' Nat. Bank of Chicago v. Sabin

34 F. 492, 1888 U.S. App. LEXIS 2322

CourtU.S. Circuit Court for the District of Minnesota

DecidedApril 4, 1888

StatusPublished

This text of 34 F. 492 (Merchants' Nat. Bank of Chicago v. Sabin) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Merchants' Nat. Bank of Chicago v. Sabin, 34 F. 492, 1888 U.S. App. LEXIS 2322 (circtdmn 1888).

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Opinion

Nelson,, J.,

(after stating the facts as above.") A court of equity will give relief in favor of the judgment creditor only when the remedy at law is inadequate and not effectual to reach property by execution, or when there is some obstruction to the enforcement of the legal remedy. The right to relief in the present suit is claimed upon the ground that the legal remedy has been pursued and exhausted, and that the debtor has property interests not subject to an execution at law, but such as can be [495]*495readied in equity. The complainant obtained judgments, and executions were issued and returned by the officer. The debt is not paid, or any part of it, and relief can only bo obtained, if at all, by the issuance of an alias execution, or in equity, by'a creditor’s bill. The latter course is pursued, and to entitle the complainant to pursue this remedy it must appear in the bill that a judgment was obtained, and that execution issued and was returned by the officer to whom it was directed unsatisfied. The allegations in the bill definitely describe the judgments and executions, and the return upon each of the latter is in the following words:

“That said defendants, nor either of them, had any goods, chattels, lands, tenements, or real estate, within said district whereupon to levy and satisfy the said executions, or any part'thereof.”

It is necessary to have the execution returned before any relief can he given, and it must be alleged in the bill that the legal remedy has been exhausted by the creditors without being able to obtain satisfaction of the debt. If the return of the officer upon the execution, set forth in the bill of complaint shows the remedy afforded is ineffectual it is sufficient. The court does not inquire liow diligent the officer is in his effort to find property subject to levy, and his return is conclusive; but it must appear, however, by the allegations in the bill, that the legal remedy is not effective. A party who seeks a court of equity, in a case like this one, is required to show in his bill distinctly all the facts which entitle him to such aid, for the court will not grant the relief claimed, or interfere if there is a plain and adequate remedy at law. The bill must charge that the judgment creditor cannot discover and reach the debtor’s property interests at law.

In this bill of complaint it appears that the assets of the debtor sought to be appropriated to the satisfaction of the debt are subject to levy, on execution under the statute of the state of Minnesota, and that the creditor had knowledge of them at the time the officer made his return. The legal remedy, for ought that appears to the contrary, is full and adequate, and has not been exhausted. It is essential to the jurisdiction of this court in a suit for discovery and relief, on the ground that the legal remedy of ihe creditor is exhausted, that the bill must charge that the judgment debtor has no property subject to execution at law, and if the complainants charge and show in their bill that property of the debtor subject to execution existed at the time lie filed his bill, he does not require a a discovery and relief in a court of equity. Such is the complainant’s condition, and the demurrer must be sustained, and it is so ordered.

The demurrers interposed by the other defendants are also sustained, and the bill dismissed.

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Nelson,, J.,

(after stating the facts as above.") A court of equity will give relief in favor of the judgment creditor only when the remedy at law is inadequate and not effectual to reach property by execution, or when there is some obstruction to the enforcement of the legal remedy. The right to relief in the present suit is claimed upon the ground that the legal remedy has been pursued and exhausted, and that the debtor has property interests not subject to an execution at law, but such as can be [495]*495readied in equity. The complainant obtained judgments, and executions were issued and returned by the officer. The debt is not paid, or any part of it, and relief can only bo obtained, if at all, by the issuance of an alias execution, or in equity, by'a creditor’s bill. The latter course is pursued, and to entitle the complainant to pursue this remedy it must appear in the bill that a judgment was obtained, and that execution issued and was returned by the officer to whom it was directed unsatisfied. The allegations in the bill definitely describe the judgments and executions, and the return upon each of the latter is in the following words:

“That said defendants, nor either of them, had any goods, chattels, lands, tenements, or real estate, within said district whereupon to levy and satisfy the said executions, or any part'thereof.”

It is necessary to have the execution returned before any relief can he given, and it must be alleged in the bill that the legal remedy has been exhausted by the creditors without being able to obtain satisfaction of the debt. If the return of the officer upon the execution, set forth in the bill of complaint shows the remedy afforded is ineffectual it is sufficient. The court does not inquire liow diligent the officer is in his effort to find property subject to levy, and his return is conclusive; but it must appear, however, by the allegations in the bill, that the legal remedy is not effective. A party who seeks a court of equity, in a case like this one, is required to show in his bill distinctly all the facts which entitle him to such aid, for the court will not grant the relief claimed, or interfere if there is a plain and adequate remedy at law. The bill must charge that the judgment creditor cannot discover and reach the debtor’s property interests at law.

In this bill of complaint it appears that the assets of the debtor sought to be appropriated to the satisfaction of the debt are subject to levy, on execution under the statute of the state of Minnesota, and that the creditor had knowledge of them at the time the officer made his return. The legal remedy, for ought that appears to the contrary, is full and adequate, and has not been exhausted. It is essential to the jurisdiction of this court in a suit for discovery and relief, on the ground that the legal remedy of ihe creditor is exhausted, that the bill must charge that the judgment debtor has no property subject to execution at law, and if the complainants charge and show in their bill that property of the debtor subject to execution existed at the time lie filed his bill, he does not require a a discovery and relief in a court of equity. Such is the complainant’s condition, and the demurrer must be sustained, and it is so ordered.

The demurrers interposed by the other defendants are also sustained, and the bill dismissed.

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Bluebook (online)

34 F. 492, 1888 U.S. App. LEXIS 2322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merchants-nat-bank-of-chicago-v-sabin-circtdmn-1888.