Enright v. Grant , 5 Utah 400 ( 1888 )

Henderson, J.:

The appellants’ petition for a rehearing upon the ground that the court, in determining that a complaint might be maintained in any case without issue and return of execution, misapprehended the nature of the property sought to be reached by the complaint. Upon this branch of the case, we were agreed that the complaint might allege facts that would avoid the necessity of alleging the issue and return of execution unsatisfied. The defendant insists, on this motion, that the exception to the rule stated in the opinion only applies when the appellant has a lien upon the property sought to be reached. There is no substantial disagreement in the reported cases that where the law creates a lien in favor of a creditor, and a debtor has fraudulently interposed some obstacle to its enforcement, the creditor can resort to equity to remove the cloud and enforce his lien, and, under statutes, where the judgments are made a lien, it may be done without issuing execution.

But where, as in this case, the creditor seeks to reach property that is not liable to execution, and no lien is created upon it, then the only ground of equitable jurisdiction is that the creditor has no adequate remedy at law; and, as stated in the opinion of the court, the general rule is that this is shown by issuing and returning an execution nulla bona. But we held, and still tbink, tbat tbis is not tbe only means of showing it, and tbe exception to tbe general rule applies to any property tbat cannot be reached by execution, and upon which no lien is given. 3 Pom. Eq. Jur. sec. 1415, note 4, cited by counsel, expressly recognizes tbe disagreement in tbe reported cases on tbis subject.

We call attention to the practic pursued in tbis case on motion for rehearing. The petition is an extended and élaborate argument in favor of a rehearing. Tbis is not * in conformity to tbe rule. Tbe petition for rehearing is a pleading, and should not be an argument. If points and authorities are submitted, it should be in a separate instrument, and not as a part of tbe petition.

Tbe motion for rehearing is denied.

Zane, O. J., and Boreman, J., concurred.