Bardstown & Green River Turnpike Road Co. v. Caldwell , 47 Ky. 36 ( 1847 )

Judge Bkecic

delivered the opinion of the Court.

Caldwell filed his bill to enforce the collection of a judgment at law against the President and Managers of the Bardstown and Green River Turnpike Company, and for that purpose attached debts alledged to be due the Company from several persons. The Court below decreed the relief sought in part, and the defendants have appealed to this Court. ■

The first question presented for consideration, and the only one which we deem necessary to notice, is whether the Court below had jurisdiction.

The complainant based his right to come into a Court of Equity for • relief, upon this allegation: That it had been decided by this Court that a debt could not be coerced out of the defendants by law in the usual and ordinary mode of collecting debts, and a fieri facias having been returned against the defendants, -no property found, in the name of Applegate against said Company.

When the execution in the name of Applegate had been returned, is not alledged, but it appears from the execution, exhibited in the record, that it had been nearly two years before complainant exhibited his bill. But the return upon that execution, no matter when made, was insufficient to give a Court of equity jurisdiction in this case. The return must be made upon an execution upon the judgment sought to be enforced. It is upon that ground alone, that the statute gives jurisdiction to a Court of Chancery: Wooley vs Stone, (7 J. J. Marshall, 302.) But had the Court jurisdiction upon the other ground, that debts against Turnpike Companies cannot be enforced at law? We are aware of no such decision by this Court as the complainant supposes and assumes. In the case of the Winchester and Lexington Turnpike Company vs Vimont, (5 B. Monroe, 1,) no question came up as to the jurisdiction of the Court, and in that case, although the fact does not appear in the opinion, the complainant exhibited his bill for a settlement of his accounts with the company, and to enforce a lien which the company had given him. The main question was, as to the mode of granting relief. The Court decide that it was erroneous to decree a sale of the road, but that the complainant was entitled to the profits until his demand was satisfied. In this case the complainant does not even all edge that the defendants had no property subject to execution for the satisfaction of his judgment. It is true the property of such a corporation consists mainly in the road, which might not be subject to sale under execution. But it by no means follows that other property might not belong to the company, which would be. That fact should be made to appear in the way required by the statute, the return of an execution upon a judgment at law nulla bona, before the party can resort to a Court of Equity. We are not prepared to admit that a creditor upon the genera] principles of equity, has a right to proceed by attachment or otherwise, to have his debt against a corporation of any kind enforced in a Court of equity. The mere fact that the debtor is a corporation, will not give the Chancellor jurisdiction. And he can only acquire it against a corporation in the same way, or upon the same state of case, which would entitle him to jurisdiction against any. other debtor. The complainant should have exhausted his remedy at law, and having failed to do so, and alledging or showing no other ground, which gave the Court jurisdiction, his bill should have been dismissed without prejudice.

Suite at law may be maintained against Turnpike Road Companies as well as individuals. Justices of the Peace have jurisdiction of cases for - breach of contract, where the damages are laid at fifty dollars or under; (3 J. J. Mar. 587; 4 Ib. 171; 4 B. Monroe, 398 ) Grigsby for appellants; C. A. Wickliffe for appellee.

Wherefore, the decree is reversed, and the cause remanded, that a decree may be rendered as indicated.