Williams v. Sexton

19 Wis. 42

• Court: Wisconsin Supreme Court
• Decided: January 15, 1865
• Status: Published

Opinion

By the Court,

Cole, J.

The first point taken upon the brief of the counsel for the appellant has already been ruled against him in the previous decisions of this court. See Winslow v. Dousman, 18 Wis., 456.

Had a motion been made to strike out the redundant and superfluous matter contained in the complaint, we think it should have been granted. The precedent for the complaint is undoubtedly the old form for a creditor’s bill given in Barbour’s Chancery Practice,- and consequently the complaint is needlessly prolix and verbose. It is bad pleading under the Code, but the proper way to take advantage of this defect is by motion. Sec. 22, chap. 125, R. S.

It is further claimed that the complaint shows upon its face that the remedy at law has not been exhausted. An examination of the complaint will show that this objection is well taken. For it is distinctly alleged therein, “ that at the time “ of the commencement of said action, in which said judgment “ was rendered, and since that time, the said John Poe also “ carried on the business of farming &c., and was then and “ now is the owner of, or in some way or manner beneficially “ interested in, the following described real estate,” &c., giving a full description of such real estate, and alleging that it is worth considerably more than enough to satisfy the judgment recovered against him. Now if this allegation is true — and the respondent must be bound by it on this demurrer — then clearly she has no reason whatever for invoking the aid of a court of equity. She can obtain satisfaction of her judgment by proceeding and selling the real estate belonging to the judgment debtor upon execution. Why come into a court of equity, when, according to her own showing, she has a complete remedy at law ? The remedy by creditor’s bill only exists in aid of an execution at law, and where the judgment debtor has concealed or placed his property beyond the reach of that writ. Hpnce the necessity for coming into a court of equity under those circumstances, to remove the obstacle and reach the property. But no such necessity exists here, according to the allegations of the complaint, since the j udgment debtor’s real estate is known, and can be reached by an execution.

We do not think what is said in the complaint about instituting proceedings supplemental to an execution would defeat this action. It appears that those proceedings had been abandoned. See The Second Ward Bank v. Upman, 12 Wis., 499.

The order overruling the demurrer is reversed, and the.cause remanded for further proceedings.