Majority
p. 391SKINNER a. STUART. Supreme Court, First District; General Term, Feb., 1863.
Headnote
Action by Creditor to enforce the Lien of an Attachment and Execution.—Remedies in Eayor of Attaching Creditor.—Settlement of Priorities.—Action by Plaintiff in Sheriff’s Name.A plaintiff is not entitled to maintain an action in his own name to enforce the lien of an attachment issued in his favor, as a provisional remedy, without a strict compliance with the provisions of section 238 of the Code, which requires him to give an undertaking to the sheriff.
The remedies afforded by the chapter of the Code relating to attachment (§§ 227, 243), are the only remedies known to our law in such cases.
On complying with the provisions of § 238, the plaintiff, having an attachment, may prosecute the actions therein authorized, either in his own name or that of the sheriff.
A creditor cannot maintain an action in aid of his execution without showing fraud, collusion, or combination, obstructing the ordinary processes of the law. Mere questions as to priority of lien between himself and other creditors, will not suffice.
Appeal from an order overruling demurrer.
This action was brought by Francis Skinner, Henry H. Horton, Edmund F. Cutler, Josiah Bardwell, and William P. Brent-well, against George H. Stuart, and twenty-four others, to aid the levying of an attachment, issued as a provisional remedy in favor of the plaintiffs, in an action against Joseph W. Shepherd and William R. Moore; and, also, to determine the priority among certain of the defendants, who were creditors of Shepherd and Moore. The complaint is stated at length, 13 Ante, M2, where the decision sustaining the action is reported.
The complaint set forth, among other things, that plaintiffs, and all the defendants, except G. H. Stuart & Co., and S. B. Chittenden, were attaching creditors of the firm of Shepherd & Moore, non-resident debtors; that the attachments were all in the hands of the sheriff of this city and county, at the time of
p. 392I. The complaint does not state facts sufficient to constitute any cause of action against the defendants, G. H. Stuart & Co. 1. The only allegation in the complaint, upon which any relief
the commencement of this action, and still remained there; that the defendants, G. H. Stuart & Co., had in their possession large amounts of money and property levied upon by such attachments, but refused to deliver the same to the sheriff under the attachments; that the defendant Chittenden became the assignee, or purchaser, of all the interests of Shepherd <fc Moore in said money and property, subsequent to such attachments ; that the defendants Peet, Hughes & Peet, issued the first attachment, hut—as against the other attaching defendants and plaintiffs—were not entitled to claim priority, as their action was commenced before them cause of action matured. The defendants, Stuart & Co., Linder & Kinsley, and Butterfield & Jacobus, demurred, separately, but all specified the same grounds of demurrer, which were a copy of the grounds of demurrer named in section 144 of the Code. The defendant Jewett, after the general demurrer, said, specially: 1. That the cause of action is vested in the sheriff, in whose name the action should have been brought. 2. That Shepherd & Moore and the sheriff should have been made parties defendant, and that there is otherwise a defect of parties defendant. 3. That the sheriff should have been made plaintiff; and if not, then the defendants other than Stuart & Co., Chittenden, and Peet, Hughes & Peet, ought to have been made plaintiffs, unless they refused to join ; and that there is otherwise a defect of parties plaintiff. 4. That there is an improper uniting of causes of action in respect of .the cause of action against Peets and Hughes, not beiqg properly. connected with that against Stuart & Co. The defendants Peets and Hughes stated: 1. That several causes of action have been improperly joined. 2. That there is no cause of action. 3. That the sheriff ought to be made defendant. The defendants Burnham, Plumb, and Atwater did not appear. The other defendants did not answer.
The demurrer was overruled by Mr. Justice Allen, and the three sets of defendants, whose demurrers are stated above, appealed.
Andrew Boardman, for the appellants, Stuart & Co.
p. 393against Stuart & Co. could be based, is, that when the sheriff demanded of them that they should deliver to him the property levied upon, they refused to comply with said demand, or to pay or deliver over said property, “ or properly to account therefore, as required by law.” 2. There is no allegation that since the recovery of judgment, or the issuing of execution, any demand has been made by the sheriff upon Stuart & Co. for the delivery of the property, or that they have been informed of the recovery of judgment, or the issuing of execution. 3. It is not averred that Stuart & Co. have interposed any claim to any portion of the1 property, or that they have done any act to prevent the sheriff from taking manual possession of the prop, erty. It is averred that the property levied upon consists, in part, at least, of tangible articles which the sheriff might seize. 4. The allegation that Stuart & Co. refused properly to account for the property levied upon, as required by law, is not an averment that they have refused or omitted, upon the proper request, to furnish the sheriff with the certificate in reference to the property of the debtors in the attachment, required by section 236 of the Code. Such certificate is not an “ accounting for property.” 5. The only question, therefore, presented by the pleading, on the question of “ contumacy,” is, whether a party, on whom an attachment against a non-resident debtor is sought to be served by the sheriff, may, when applied to for the property, after having given the proper certificate under the statute, omit to do any affirmative act to assist the sheriff in taking possession of the property attached, and leave the sheriff to seize such property, and reduce it into his own possession, at his own risk. It is submitted that the only affirmative act required of the custodian of such property, when attached, is, that he shall give the certificate specified in section 236 of the Code; and the possession is to be obtained by the affirmative act of the sheriff. (See Code, §§ 232-286; also, 2 Rev. Stat., 4, §§ 7, 8; as amended, Laws of 1840, § 9; Ib., 81, §§ 34, (36.) 6. If it can be considered as containing an allegation that Stuart & Co. refused to furnish the certificate required by section 236, even that is no ground for maintaining the present action against them; for the same section has provided the means for compelling the delivery of the certificate, or the examination, under oath, concerning the same, as a substitute therefor.
p. 394U. Even if the complaint alleged a demand by the sheriff of Stuart & Go., after judgment and execution, and a similar omission and neglect to deliver over the property, still there would be no cause of action against Stuart & Co. For while the bailee, or factor, holding the property of the non-resident principal, will not he warranted in resisting the sheriff, in such case, he is not, by law, required to assist in subjecting the property of his principal to such a lien. III. This action cannot be maintained by the present plaintiffs. Speedy and complete remedies have been provided in favor of the sheriff, to enable him to possess himself of the tangible property, and reduce to his control the credit, shares of stocks, &c., of the debtors, in the attachment and execution. (See Code, §§ 232, 236, 237; 2 Rev. Stat., 4, §§ 7, 8.) Such proceedings of the sheriff may be summary and inexpensive, or they may be active, when that course shall be requisite. With such remedies provided in favor of the sheriff, the court will interfere only when necessary to prevent a failure of justice. IV. Ho court of equity has ever assumed to act in aid of a court of law, to remove obstacles to the execution of its process, where the act complained of was a mere omission of the party proceeded against, to assist the sheriff in enforcing his process. V. Feet, Hughes & Feet cannot be required, in this suit, to re-establish the validity of their debts and attachment. They are proceeding to do that in the suit against Shepherd & Moore. Judgment in that suit, will be conclusive in all suits and proceedings. Shepherd & Moore are not parties to this suit. VI. The pretence of settling priorities among the attaching creditors, will not warrant the court in assuming jurisdiction. Ho necessity therefor is shown. VII. There is a defect of parties plaintiff. 1. The demurrer of Stuart & Go., on this point, is sufficiently definite. . (Durkee a. Saratoga & Wash. R. R. Co., 4 How. Pr., 226 ; Hyde a. Conrad, 5 Ib., 112; Anibal a. Hunter, 6 Ib., 255; Getty a. Hudson River R. R. Co., 8 Ib., 177-182; Johnson.a. Wetmore, 12 Barb., 433 ; Haire a. Baker, 5 N. Y., 357 ; Forrest a. Mayor, &c., of N. Y., 13 Abbotts' Pr., 350; Abbotts’ Pl., 449-453.) 2. The action, if it can be maintained at all, can be maintained only by the sheriff. He is, within the meaning of the law, the
p. 395true party in interest. (Code, §§ 231, 232,237,238; 2 Rev. Stat, 3, §§ 7, 8; amended, Laws of 1840, ch. 354, § 1.) 3. The other attaching creditors should be joined as plaintiffs, or the proper excuse for not joining them should be given. (Code, §§ 117,119; Habicht a. Pemberton, 4 Sandf., 657 ; Bishop a. Edmiston, 13 Adbotts' Pr., 346.) VIII. There is a defect of parties defendants. 1. The action should be only against Stuart & Co. 2. If the debt of Peet, Hughes & Peet is to be litigated in any manner in this action, then Shepherd & Moore must be made parties thereto. I. The complaint contains no cause of action against the defendant Jewett. 1. There is no question as to his debt, his attachment, or its priority. 2. As far as any cause of action exists in anybody against Stuart & Co., it is not in the plaintiff, but in the sheriff. (Code, §§ 234-238.) The latter section authorizes the plaintiff to prosecute the action, not in his own name, but in the sheriff’s—i. e., to prosecute the action which the sheriff brings; else why indemnify the sheriff against costs ? As far as the property consisted of chattels, for which trover might be brought, the sheriff might maintain trover or trespass at common law, as well as by the terms of the Code. (Code, § 227, subd. 4; Crocker on Sheriffs, §§ 807, 809, and cases there cited.) 3. No relief is asked against Jewett. 5. The plaintiffs, subsequent attaching creditors to him, assume control of the adjustment of the indebtedness of Stuart & Co., and of the recovery of the property from them. This duty the law places with its sworn officer, the sheriff, with liberty to the creditor to protect his rights by prosecuting it. As it now stands, Jewett and the other prior attaching creditors, must let these plaintiffs have control of the prosecution of the claims against Stuart & Co., without either voices or action in the matter, and no opportunity to appeal, if on the trial Stuart & Co. obtain, no matter how erroneous, a judgment, if these plaintiffs neglect or refuse to appeal. And yet these defendants, if the action is properly brought, are bound by the judgment. If this complaint had been tiled by the plaintiffs, on behalf of themselves and all others who might join; or if the attaching creditors were made defendants, after a refusal to join as plaintiffs, although it would
Anthony R. Dyett, for the appellants, Jewett and others.
p. 396not obviate the objection that the sheriff should bring it, the difficulties and injustice suggested would not exist, and the complaint would be less objectionable. (3 Paige, 320; 1 Ib., 637.) II. If this action can be maintained, certainly Shepherd & Moore, the judgment-debtors, ought to be parties. They have a right to be heard as to the cause of action against Peet, Hughes & Peet. The sheriff should also be a party, either as plaintiff alone, as already shown; or if not, then all the creditors should have been joined, or the action have been brought on behalf of all. (1 Paige, 637; 3 Ib., 320.) III. Several causes of action are improperly united. (Code, § 167.) In other words, the complaint is multifarious. IV. Justice Allen attempts to liken this case to the case of a fraudulent obstruction to an execution, and bases his whole decision on such a fancied 'resemblance. But this case has no analogy to such a one. 1. Ho .third person is claiming any adverse fraudulent title. 2. In the case of. fraxidulent obstructions the decree simply removes them, and then the process is executed by the officer. (1 Paige, 305-308; 6 Ib., 275; 2 Sandf. ch., 510; 9 Wend., 561 .) Here the court' is asked, in effect, to execute the process, and compel Stuart & Co. to pay to the sheriff (a duty which the law imposes on the latter). Ho-body ever heard of making other creditors defendants to such a bill. (1 Paige, 637; 3 Ib., 320; 6 N. Y., 236 -252.) 3. His Honor was right in saying (supposing this action maintainable at all) that the other creditors were proper (not necessary) parties; but his error was in making them defendants, instead of commencing the action in behalf of plaintiffs, and other creditors, who might join in making them defendants, after request to join. There is no question as to the sheriff’s right to sue. (Code, § 237.) And the court will presume the sheriff will do his duty. (Dodge a. Portez, 13 Abbotts’ Pr., 253.) I.It is clear that this action can be maintained upon the general pzdnciples govez’ning and applicable to equitable actions. The opinion of the learned judge, at special term, and the authorities cited, covér the whole ground.
Miller, Peet & Nichols, for the appellants, Peets and Hughes.
George W. Parsons, for the respondents.
p. 397H. The service of the attachment of plaintiffs, with notice, upon Stuart & Co., created a provisional lien in plaintiff’s favor upon the property named in the complaint, which lien was afterwards perfected absolutely by their judgment and execution. (Code, §§ 234,235; Coddington a. Gilbert, 5 Duer, 72 .) The refusal of the bailees to deliver the property to the sheriff, or to render a statement and account thereof, prevented that officer from enforcing the lien and plaintiffs’ rights without an action. It is the province of a court of equity to aid "in the removal of the obstacles to the execution of the process of the' courts of law. This could not be properly done without bringing before the court all the parties interested in the subject matter, namely, the property. IY. The general objections as to defect of parties, cannot be considered, as such objections must state the defects specifically. (Getty a. Hudson R. R. Co., 8 How. Pr., 177 ; Mitchell a. Lenox, 2 Paige, 280; Robinson a. Smith, 3 Ib., 222; Dias a. Bouchaud, 10 Ib., 445.) Y. The sheriff is not a necessary party plaintiff or defendant. 1. Hot plaintiff, as appears by §§ 237, 238, of the Code. 2. Hot defendant, as he has no interest adverse to the plaintiff, and is not a necessary party to a complete determination or settlement of the questions involved. (Code, § 118.) 3. Ho title or possession in the property had ever been acquired by, or was vested in, the sheriff. He had, by his official act in the service of process, created a lien in favor of plaintiffs; and if, the sheriff could enforce the same under sections 232, 234, 236, or 237, of the Code, plaintiffs could, in his stead, enforce by virtue of section 238. 4. If the Code permits such an action to be brought by plaintiff instead of sheriff, as shown, then, of course, the plaintiff represents the sheriff, and he need not be a party defendant. , * YT. Shepherd & Moore could not properly be made parties, as their interests in the property attached were assigned and transferred to the defendant Chittenden, and the attachment only affected that property. 1. So far as plaintiff’s claim is concerned, the only interest Shepherd & Moore could have,
III. So far as the defendants Stuart & Co. are concerned, the Code furnishes sufficient authority for the plaintiffs’ bringing this action, instead of the sheriff. (Code, §§ 237, 238.)
p. 398viz., the adjustment of the claim, was disposed of by the recovery of the judgment in the original action. 2. The complaint does not seek to have any money or property applied upon the other claims until judgments thereon should be perfected ; and, of course, Shepherd & Moore’s rights will be adj usted in those actions, if any have not already been disposed of, by judgments. • VII. The defendants, other than Stuart & Co., Chittenden, Peet, Hughes & Peet, as well as those defendants, are properly made defendants instead of plaintiffs, because they are necessary parties to a complete determination or settlement of the questions involved in the action. {Code, § 118.) 1. They claimed to have a lien upon the property attached; but they were not united in interest with plaintiffs. They are not joint contractors or owners of any claims or rights. 2. The defendants could have no right to unite their claims with ours without our permission, and embarrass our proceedings with any adjustments or questions pertaining particularly to their rights or claims. 3. We could not have this property thus incumbered by their liens, disposed of without bringing those parties before the court. (Bailey a. Inglee, 2 Paige, 278; Mitchell a. Lenox, Ib., 280; Whelan a. Whelan, 3 Cow., 537 ; Champlin a. Champlin, 4 Edw., 228 .) VIII. Improper joinder of parties is not a defect or want of parties contemplated by the Code, and does not furnish ground of demurrer. (Gregory a. Oaksmith, 12 How. Pr., 134 ; Brownson a. Gifford, 8 Ib., 389; Peabody a. Washington County Mutual Ins. Co., 20 Barb., 339 ; N. Y. & New Haven R. R. Co. a. Schuyler, 17 N. Y, 592 ; S. C., 7 Abbotts’ Pr., 41.) E there be a good cause of action stated in the complaint, upon which a judgment may be rendered in favor of the plaintiffs, against any of the defendants, this ground of demurrer must fail. (Code, § 274; Peabody a. Washington County Ins. Co., 20 Barb., 339 .) IX. The objection that several causes of action have been improperly united, is not well taken. 1. There is but one cause of action stated, i. e., the existence of liens and claims for the recovery of money and property, admitted by Stuart & Co.’s demurrer to belong to the parties originally proceeded against by the attachments, admitted to be in the possession of Stuart & Co.; and the relief sought is to have the property applied on
p. 399account of the various liens, as the court shall direct. 2. This ground of demurrer does not apply to an equity suit, where various facts are necessary to be stated, all directly or indirectly affecting the action and the parties, and all of which must be proved to enable the court to grant the relief asked for in the complaint. 3. The words “improperly united,” used in subd. 5 of § 144 of the Code, have reference to the character or classes of actions, as specified in section 167. (Robinson a. Judd, 9 How. Pr., 378 .) 4. The principles which dispose of this objection, as well as the one in respect to misjoinder of parties, are discussed and settled in the case of Moore a. Weil ( 33 Barb., 30 ; S. C., 11 Abbotts' Pr., 421.)
I. At common law, when personal, tangible property was levied upon under an execution, it forthwith vested in the sheriff—the plaintiff in the execution could not meddle with it; if it was converted or concealed or taken away, none but the sheriff could retake it, or by action recover it or the value of it. The property, when once levied upon, was in the custody of the law; and its minister, the sheriff, was bound to preserve it against all the world, for the purpose of satisfying the judgment. To him alone could the plaintiff look for the application of the property to this purpose.
The law now allows a provisional remedy, in certain cases, to secure the application of property to the satisfaction of an alleged debt, immediately after the commencement of an action, and of course before the claim is established. By this provisional remedy, a warrant of attachment is issued: if the property is tangible personal property, the sheriff shall keep it; and all debts, credits, and effects of the defendant, he shall collect and receive into his possession. He may take such legal proceedings, either in his own name or the name of the defendant, as may be necessary for that purpose. (Code, § 232.) This section certainly does not authorize the plaintiff in the action in which the attachment is issued, to commence an action to take possession of the tangible property levied upon, or to take legal proceedings to collect, or receive into his possession debts, credits, and effects of the defendant. He is precisely under the same disability in that respect in which a plaintiff in an execution was placed, before the Legislature gave the right to this
p. 400
provisional remedy. He can no more meddle with or claim possession of the property under it, than he could at any time under an execution. The property is, in the same manner, in the. custody of the law; and he can only look to the sheriff, who is responsible to him for its application to any judgment which he may recover. The only provision in the Code, or in any statute, which admits of any proceedings directly by the plaintiff, is contained in section 238, which says that the actions authorized in the chapter ty be brought by the sheriff, may be prosecuted by the plaintiff or under his direction, upon the delivery by him to the sheriff of an undertaking executed by two sufficient sureties, &c. So that, by complying with the conditions of this section, the plaintiff may undoubtedly prosecute in his own name any action which the sheriff could have prosecuted ; that is, if there are debts, credits, and effects, he may, in his own name, take such legal proceedings as may be necessary to collect and receive them into his possession. If it is a promissory note belonging to the defendant, he may sue the parties liable on the note in his own name, or he may sue any debtor of the defendant, or any persons, who, like the defendant Stuart in this action, have moneys, bills, notes, or other evidences of debt or other property belonging to the defendants in the' attachment. But, certainly, he cannot do this under the provisions of the Code without complying with the conditions which it prescribes. It is nowhere alleged in the complaint, that he has executed an undertaking to the sheriff, and as he has no such right at common law, he must strictly comply with the terms upon which the statute gives him this new right. As I have already shown, he has no more right at common law, or by any previous statute, to commence such a suit, than he had to commence a suit to collect and receive into his possession debts, credits, and effects of the defendant, under an execution before the provisional remedy was authorized by law.
II. But even if he did comply with the conditions prescribed by the Code, could an action of this kind be maintained? This is an action requiring the equitable interposition of the court, seeking its extraordinary instead of its ordinary remedies. The complaint sets forth that the defendants, Stuart & Co., have a large amount of personal property, consisting of moneys, bills, notes, and other evidences of debt, and property deposited with
p. 401
them by and belonging to Shepherd & Moore, thg defendants in the attachment suit. It shows no fraud, collusion, or combination obstructing the ordinary processes of the law; it does not show that these processes have been exhausted. Indeed, it does not show that they have ever been resorted to; for they could not have been resorted to without first bringing a common-law action. ' There is nothing stated in the complaint, as is erroneously 'supposed by the court below, to show that the lien cannot be enforced without the intervention of»the court in the exercise of its equitable powers. , If the defendants, Stuart & Co., withhold the statement required of them by the Code, a summary method is provided by which they can be compelled to furnish the statement; and if they refuse to deliver the property to the sheriff, the remedy afforded by an ordinary action will be ample for the plaintiffs, if they think proper to resort to it, by first complying, with the conditions which the Code prescribes.
It is, in my opinion, a great mistake to say that the remedies afforded by the chapter of the Code, relating to attachments, are merely cumulative. They are the only remedies known to the law in such cases. Where a lien was obtained on personal property under a judgment previous to the enactment of the Code, no one but the sheriff could have enforced the lien by virtue of the execution. As I have shown, where the property was levied upbn, it vested in him, and he was responsible to the plaintiff for the faithful performance of his duties.
The sheriff alone could sue for its recovery, where converted, concealed, or taken away. Where, indeed, the execution was returned unsatisfied, the plaintiff was entitled to his creditor’s bill; or where an execution was issued, and the enforcement of the execution was obstructed by fraud, collusion, or combination, the extraordinary aid of a court of equity would be afforded to remove the obstruction. But this case does not fall within either of these classes of equitable remedies. Neither will the pretence of settling priorities among the attaching creditors warrant the court in assuming jurisdiction. If the sheriff sued and recovered possession of the property, he would satisfy the attaching creditors in the order of their priority. If any attaching creditor commences an action under section 238 of the Code, and, as in this case, prays to have the property delivered
p. 402
to the sheriff, that officer will do precisely the same as if the action was prosecuted in his name.
The complaint cannot be sustained; first, because the plaintiffs have not complied with the provisions of the section of the Code (§ 238), which authorizes the plaintiffs to commence an action; and second, if they did comply with it, the complaint does not state a sufficient cause to sustain an action of this nature.
There should be judgment for the defendants on the demurrer, with costs.
Ingraham, P. J., and Peckham, J., concurred.
Order reversed.