Arlington Brewing Co. v. Wyvill ( 1910 )

Mr. Justice Van Orsdel

delivered the opinion of the Court:

The sole question presented by this appeal is the priority in which the various parties who intervened in the case below and became parties complainant shall be paid out of the funds in the hands of the court.

Of the appellants who have perfected their appeals, it appears that the Arlington Brewing Company acquired a judgment in the justice of the peace court of the District, upon which execution was issued and returned “No property found.” A transcript was properly filed in the supreme court of the District, and a fieri facias issued thereon, but was not returned at the time the company filed its intervening petition. H. & H. W. Catherwood secured judgment originally in the justice of the peace court, upon which execution was issued and returned “No property found.” A transcript was filed in the supreme court, and a fieri facias issued thereon and returned “Nulla bona.” The same proceeding as in the Arlington Brewing Company case was had in the Albert E. Norris & Company case. An objection is interposed to. the right of the Arlington Brewing Company and Albert E. Norris & Company to participate in this fund as judgment creditors, inasmuch as it is insisted no liens were acquired in the supreme court of the District because of the failure of the marshal to make return of the fieri facias. This contention, we think, is without merit. A judgment lien against the property of the defendant Daly in the District existed from the time of the delivery of the fieri facias to the marshal. D. O. Code, sec. 1079, [31 Stat. at L. 1359, chap. 854]. The companies were judgment creditors, and entitled to intervene in the equitable proceeding.

It is well settled by the decisions of this court that, where a bill is filed by a judgment creditor to subject the equitable estate of the judgment debtor to the satisfaction of the claim, and the judgment creditor asserts only his own right, he acquires an equitable lien as of the date of the filing of his bill and the issuance of process thereon. Gottschalk v. Live Oak Distillery Co. 7 App. D. C. 169; Fulton v. Fletcher, 12 App. D. C. 1; Babbington v. Washington Brewery Co. 13 App. D. C. 527; May v. Bryan, 17 App. D. C. 392; Ohio Nat. Bank v. Berlin, 26 App. D. C. 218. As was said in Young v. Kelly, 3 App. D. C. 296: “It is conceded, and of course it could not successfully be controverted, that by,the filing.of a bill in equity .to enforce a judgment at common law, and by the issue of process thereon,'a lien is obtained by the complainant upon the property specifically and sufficiently described in the bill and sought to be reached by it; and this equitable lien continues until the suit is disposed of by decree, dismissal, abatement, or otherwise.” Where a judgment creditor, therefore, files a bill in equity to subject the equitable estate of the judgment debtor to the satisfaction of his claim, and does so in his own behalf solely, he obtains a prior lien dating from the date of the filing of his bill and the issue of process thereon.

• But that is not this case. The bill was filed not only on behalf of the judgment creditor Wyvill, but “on behalf of such other judgment creditors of said defendant Daly as may properly intervene and become parties hereto.” It was in the nature of a general creditors’ bill. It was filed on behalf of a number of judgment creditors, and had the effect of bringing . them in to share in the proceeds of the particular estate. Wyvill did not pursue the course open to the vigilant creditor to acquire a prior lien. The case here is not different from an instance where a number of judgment creditors unite in the original bill against the living debtor. In that instance, the equitable liens of the creditors so uniting would be prior to all those subsequently acquiring equitable liens, but those uniting in the original bill would pro rate in the distribution.

The receiver appointed under the prayer of Wyvill’s bill was appointed to collect the property of the judgment debtor, and hold it subject to the order of the court for the satisfaction of the claims, — not only of Wyvill’s, but of such other creditors’ as might intervene and become proper parties. While the question of the prior rights of creditors under a bill of this sort has not been before presented to this court, we think the lav,7 is well settled that, where a complainant, through a bill in equity, seeks to subject an equitable estate to the satisfaction of his claim, and files the bill for himself and for such other creditors as may intervene and share in the expenses of the suit, he gains no priority over such creditors. “If the plaintiff professes to sue both for himself and for such other creditors as may choose to come in and share in the expenses of the suit, it is obvious that he gains no priority over such creditors in the distribution of the proceeds of the suit.” 6 Pom. Eq. Jur. § 892. See also Younger v. Massey, 41 S. C. 50, 19 S. E. 125; Haskin Wood Vulcanizing Co. v. Cleveland Ship-Building Co. 94 Va. 439, 26 S. E. 878. It logically follows that the creditor filing the bill, with all those creditors intervening with him, would be entitled to share pro rata in the final distribution of the funds.

The auditor misapprehended the holding of this court in Ohio Nat. Bank v. Berlin, supra. In that case the bill was filed by a single judgment creditor on its own behalf. The only question of priority involved was between the lien thus acquired against the equitable estate, and the grantee of the same equitable interest under an unrecorded conveyance. It was held that the judgment creditor was “entitled to the enforcement of his judgment by a decree for the sale of the equitable interest described in the bill as against the right of the defendant Green, who did not undertake to record his conveyance until after the bill had been filed.”

The judgment is reversed, with costs, and the cause remanded, with instructions to proceed in accordance with the views expressed in this opinion. Reversed. ,