Skinner v. Stuart , 13 Abb. Pr. 442 ( 1861 )

Allen, J.

—Recent statutory enactments have given a very wide scope to attachments, and executions upon judgments following attachments, against the property of the..debtor. . The sheriff is authorized to seize not only" tangible property, but also money, choses 'in action, and evidences of debt.. . (Code, §§ 231, 234, 237.)

By the-service-.of the-attachment upon-Stuart & Go., the plaintiffs acquired a provisional lien upon the property and credits of the debtors, in their possession, which lien was established and made absolute by the recovery of the judgment. The judgment established the right of. the plaintiffs to the satisfaction of their debt from, the attached property of the debtor.

The execution is but a continuance of the attachment-lien, with authority to the sheriff to convert the assets levied upon into money, in the mode prescribed by law, and apply the same in satisfaction of the final judgment. But the controversy of of the trustees or parties prevents the execution of the final process of the court. Their refusal to deliver to the plaintiffs the property and choses in action of, the debtor in their possession and under their control, or to make a statement and account thereof as required by law (Code, § 236), is an obstacle in the way of the sheriff in the performance of his duty, and presents an insuperable obstacle, if persisted in, in the way of the plaintiffs, in the recovery of their judgment. It is the province of a court of equity to act in aid of courts of law, and remove obstacles to the execution of its powers. It will enforce and give aid to the enforcement and satisfaction of liens in a manner unknown at law, and will enforce the security of a judgment-creditor against the equitable interest of the debtor in a freehold estate, treating the judgment as in the nature of a lien upon such equitable interest. (Story Eq. Jur., §§ 1216-1216 b.)

But to entitle the. judgment-creditor to the relief in equity, he must sue out an execution or other process, as if the property and interest sought to be reached was tangible and could be reached by process of law. Thus, a judgment-creditor who desires to enforce his remedy against his debtor’s equitable interest in freehold estate, by bill in equity, must first sue out an elegit. (Mate a. Duke of Marlborough, 3 Mylne & Craig, 407 ; North Am. Fire Ins. Co. a. Graham, 5 Sandf., 197.)

In Spear a. Wardell (1 Comst., 144), a lien acquired by a creditor, by a proceeding under the Non-imprisonment Act,.was enforced in equity, although no execution had been issued upon the judgment against the debtor; and in Falconer a. Freeman (4 Sandf. Ch., 565), a specific lien which a creditor, had obtained by attachment against his debtor, as an absconding debt- or, and which was obstructed by fraudulent transfers, was enforced for the benefit, of all the creditors, without preference, the same as if judgment and execution had been obtained; and in Angel a. Draper (1 Kern., 399), it was held that, to reach property of the debtor, not subject to levy; the creditor must first exhaust his remedy at law, by the return of an execution nulla bona; but to subject property to the execution, which is the proper subject of á levy, but which cannot be reached by reason of some obstruction interposed, fraudulently or otherwise, the execution should be issued, and then the bill in equity comes in aid of it.

That is precisely this case. The execution is a lien upon "the assets and choses in action in the possession of Stuart & Co.; but that lien cannot be enforced without the intervention of the court, in the exercise of its equitable powers, by reason of the wrongful act of the bailees in withholding the statement and account required of them by law, and refusing to deliver the property to the sheriff.

The plaintiffs are the proper parties to bring the action, as they are the parties in interest, and the only parties that could ■ bring an action, except as authorized by the Code. But for the provisions of the Code, the sheriff could not have maintained an action, and it is not necessary to decide whether he could bring an action against Stuart & Co., to. recover from them the notes and other claims in action held by them. Had he been able to get possession of notes or other claims in action, he could sue • them under the fourth, subdivision of section 237; but whether he could file a bill of discovery, or sue the bailees for nondelivery of the notes, is more questionable.

But it is sufficient to say that, be this as it may, neither the authority given to the sheriff, or the privilege of examination, for the purpose of discovery, given by section 236 of the Code, .deprives creditors of their well-established right to enforce their lien acquired under attachment and execution, by a suit in equity. At most the remedies given by the Code in the name of the sheriff are merely cumulative and designed to give a more summary process in cases where it can be made effectual.

The plaintiffs do show a good cause of action against Stuart & Co., as. bailees, and Chittenden & Co., as the general owners, of the property subject to the liens, and make a case entitling them to the relief sought.- The lien of the execution cannot be enforced in any other way than by an action in this form.

The sheriff is not a necessary and proper party to the action. He is but the servant of the court, to execute its process and carry out its decrees; whenever, by means of the judgment in this action, the property equitably bound by the execution in his hands comes to his possession, he is but the minister of the court to apply it in obedience to its .process and order. He has no interest, and can have none. He may sometimes represent suitors and judgment-creditors in actions; but when creditors have a standing in court and are parties to the record to assert their own rights and protect their own interests, the ministerial officer of the courtis an improper party. There are cases in which either a bailee, or general owner, or an agent, or his principal, may bring an action, but the bailee or agent could not be joined with the general owner or principal.

The sheriff only claims as representing the creditors, and as they appear in person, their interests will be protected without his intervention.

The demurrers for defect of parties are all defective, as not specifying the particular defect, with the single exception of the demurrer of the defendant Albert Jewett; and as there was no appearance in his behalf, it is not necessary to consider that. But upon any view I have been able to take of the objections made or taken by the counsel for the other defendants, or the. objections formally taken by Jewett, I am unable to discover any force in them. The sheriff, as we have seen, is not only not a necessary party, but would have been an improper party. The judgment-debtors Shepherd & Moore, are not necessary parties, for the reason—1st, That the plaintiffs’ rights as against them and the property is established by the final judgment of this court; and 2d, That they have, since the attachments, assigned and transferred their interest in the property to Chittenden, who is a party defendant, and they have no claim to, or interest in the property, or any part of it, and could not be heard to question the validity of -the lien, or contest the plaintiffs’ claim to the property.

The. other attaching creditors were not only proper but necessary parties.

Had the plaintiffs brought their action, asserting their lien "under their attachment and execution, it would have been a valid objection by Stuart & Co., the bailees and trustees, that the other- parties-had-attached the .property and claimed it under a prior and-paramount lien.

Their presence is necessary to a complete determination-and settlement of-the questions involved in-the action. (Code, §118.)

.The plaintiffs are not entitled to the satisfaction of their judgment oxit of the attached fund until-the other claims are set aside or provided for, which- can only be-.done i.n an action to which they are parties. Neither were the plaintiffs bound to make them co-plaintiff's with them. They were not necessarily in the same interest, and their attempt to embarrass and delay the action-by dilatory demurrers, shows very clearly that they have not a -common. interest with the plaintiffs in the relief demanded.

They- are brought in as parties in fact and in name, and may avail themselves of the action to secure the relief to which they are entitled, or may disclaim, as to them shall seem best ; but the plaintiffs are entitled to the relief sought, and could only get it in an action to which they Were parties. There is but one cause .of action, and that is by' the plaintiffs to recover their debt from property which Stuart & Go. refuse to subject to the process of the court, and upon which other parties claim .to have liens,-and the.title .of the plaintiffs must necessarily be settled in one;action.. They could not maintain an action against Stuart & Co., another against Chittenden, and another against Peet, Hughes & Peet, although each of these parties may claim under a title distinct from and adverse to each of the others. (Bailey a. Inglee, 2 Paige, 278 ; La Grange a. Merrill, 3 Barb. Ch., 625.)

■ Judgment- must be given for the plaintiffs, with leave to the defendants George H. Stuart, David Stuart, Thomas Wallace, David Dennison, Frederick T. .Peet, George H. Hughes, and William 0.. Peet, -to answer within twenty days on. payment of the costs-of the demurrer; As the claims of the other -defendants az’e not controverted, they need not answer. -They will be pi-otected by the judgment in this action.