Wayne County MI Archives Court.....Steward, V. Stevens 1837
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 6:58 am

Source: Cases In Chancery
Written: 1837

Cases in Chancery.

John Steward and others v. Israel C. Stevens and another.

Jurisdiction: Creditor's bills. The jurisdiction of the court of chancery to 
apply the property of the defendant, which is beyond the reach of an execution 
at law, to the satisfaction of the debt due to the judgment debtor, proceeds 
upon the ground that the remedy at law is exhausted.

Creditor's bills: Return of execution. An execution cannot be legally returned 
unsatisfied until the return day.

Where a return "unsatisfied" was actually made upon the execution, and a 
creditor's bill was filed before the return day, a demurrer to the bill was 
sustained on the ground that the remedy at law was not exhausted. (a.)

This was a creditor's bill, filed September 5, 1838, and set forth that the 
complainant recovered a judgment in the circuit court for the county of Wayne, 
against the defendant Stevens, on May 24, 1838, for the sum of $506.23 
damages; that on July 12, 1838, a fieri facias was issued on said judgment, 
returnable on the third Tuesday of November following; that on August 28, 
1838, the sheriff returned the said writ of fieri facias with a return 
indorsed thereon, that "after due and diligent search he had not been able to 
find any goods and chattels, lands and tenements of the defendant, and 
therefore he returned the said writ of fieri facias unsatisfied." The bill 
alleged that the full amount of the judgment remained unsatisfied, and 
contained the other allegations usual in creditors' bills, and prayed for a 
discovery, etc.

To this bill the defendants demurred, assigning for special cause, first, an 
objection to the form of the fieri facias as set forth; second, an objection 
to the form of the sheriff's return; and third, fourth and fifth, that the 
return was premature, and consequently the remedy at law was not exhausted, 
and the creditor's bill could not be sustained.

Geo. E. Hand in support of the demurrer.

Henry N. Walker, contra.

The Chancellor.—The first and second causes of demurrer assigned, it is not 
necessary now to consider.

The third cause of demurrer is well taken, and is conclusive. The fieri facias 
was returned, and the bill filed a long time before the return day. The 
jurisdiction of this court to apply the property of the defendant, which is 
beyond the reach of execution at law, to the satisfaction of the debt due to 
the judgment creditor, proceeds upon the ground that he has exhausted his 
remedy at law. (Cassidy v. Meacham, 3 Paige, 312.) 
Until the return day of the execution, it is the duty of the officer to seize 
and sell any property of the defendant found within his county. The execution, 
therefore, cannot be considered as legally returned, unsatisfied until the 
return day.

In the case under consideration, it does not appear but that the officer, 
before the return day of the fieri facias, could have found property 
sufficient to satisfy the judgment. The statute (R. Stat., 365, sec. 25) 
provides, that "whenever an execution against the property of the defendant 
shall have been issued on a judgment at law, and shall have been returned 
unsatisfied, in whole or in part, the party suing out such execution may file 
a bill in chancery against such defendant," etc.

This section is similar to a provision of the revised statutes of New York, 
and in that State it has been uniformly held that a creditor's bill cannot be 
properly filed until after the return day of the execution issued on the 
complainant's judgment, although the execution had been actually returned 
before the return day. (See Beck v. Burdett, 1 Paige, 305; Edmeston v. Lyde, 
Ib., 637; Clarkson v. De Peyster, 3 Paige, 312, 320; McElwain v. Willis, 9 
Wend., 560.) And this is unquestionably the true rule. A defendant ought not 
to be harassed by a suit in chancery, when he has property which can be 
reached at law, during the life of the execution.

The demurrer is well taken, and must be sustained. 

Demurrer sustained.

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(a.) See Eldred v. Mack, supra, 162, and cases cited in note.

Additional Comments:
CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN
BY ELON FARNSWORTH, Chancellor 

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