Dodge v. Barker

This bill is filed to set aside two levies on property belonging to the plaintiff in the village of Lawton, Michigan. The Phoenix Basket Company, a Michigan corporation, secured a judgment against Thomas F. Dodge on the 5th day of February, 1900, in the circuit court for Van Buren county, Michigan, for $555.37 damages and $20.50 costs. This judgment was renewed on May 31, 1910, and again on April 22, 1921. On May 28, 1920, an execution was issued on the second judgment and levy was made on the property in question. On August 17, 1921, an execution was issued and levy made under the third judgment. No sale has yet been made under either of the levies. The purpose of this suit is to have these two levies set aside. The Phoenix Basket Company was organized on February 24, 1898, with a time limit of 20 years. The time limit expired February 24, 1918, and the three years additional time given by statute expired February 24, 1921. The bill is filed on the theory that the first levy made under the second judgment cannot be enforced because that judgment is now outlawed; that the levy made under the third judgment cannot be sustained because that judgment is void for certain jurisdictional reasons; that neither of the judgments and neither of the levies are of any validity because there was no such corporation as the Phoenix Basket Company at the time the judgments were rendered, or at the time the executions were issued. The plaintiff further alleged in his bill as a reason why the levy should not be maintained, that the property levied on was his homestead of a value not to exceed $1,500. Service of the summons was not made upon the Phoenix Basket Company because it could not be found within the bailiwick. The defendant Barker was served and filed his answer, in which he denied the allegations of the bill and insisted on his right to maintain the levies. On the hearing a decree was entered granting the relief prayed for. From this decree, the defendant Barker has appealed.

The circuit judge rightly held that the levy of execution under the third judgment could not be enforced because when that judgment was rendered and when the execution thereon was issued the corporation had been dissolved. The testimony as to this fact is undisputed.

As to the levy of execution under the second judgment the court held that it could not be enforced because that judgment was outlawed. In so holding the court was wrong. It is true that the judgment was outlawed but the execution was issued and levy was made before it became outlawed. The levy was made May 28, 1920, and the defendant had five years from that date in which to enforce it. In Mosher v. Borden, 201 Mich. 106, this question was fully discussed and the court said:

"As the execution had been issued and a levy made within the lifetime of the judgment the levy should not be set aside or the sale restrained."

Nor is the right of the defendant to maintain the levy affected by the dissolution of the corporation. As it was made before the corporation was dissolved, the levying officer has a right to proceed as though the dissolution had not occurred. 7 R. C. L. pp. 736, 737.

The claim that the property levied on is the homestead of the plaintiff, if true, furnishes no valid reason for setting aside the levy. The statute provides what proceedings shall be taken for the debtor's protection under such circumstances. Judicature act, chap. 23 (3 Comp. Laws 1915, § 12816 et seq.).

The decree of the circuit court is reversed, with costs to the defendant. A decree dismissing the bill will be entered.

CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ., concurred.