Hart v. Tims — 3 Edw. Ch. 226

Majority

p. 226

Hart v. Tims.

June 26, 1838.

Headnote

Practice. Judgment. Creditor's suit. Receiver.

A copy of the bill ought be served, before moving for a receiver in a judgment creditor’s suit.

Judgment creditor’s bill, for one hundred and fifty-five dollars and sixty-five cents. A subpoena had been issued and served personally ; and soon afterwards the complainant served on the defendant a petition for a receiver. No copy of the bill had been served.

Mr. Rowley, for the complainant.

Mr. Kinney, for the defendant.

The usual and, I consider, the better practice in these cases is, to serve a copy of the bill on the defendant personally or on his solicitor before moving for a receiver, instead of presenting a petition, stating what the bill contains, &c. Here, the defendant has never seen the bill; and his affidavit shows that this proceeding has been precipitated against him without necessity or any previous notice of the amount of the judgment or how much he was required

p. 227

to pay, although he swears he would have paid forthwith, if he had been notified.

, , , . - I suppose the complainant, as a matter or strict right, was at liberty to file this bill and that the defendant must pay the costs of it, as well as the amount of the judgment; but, under the circumstances disclosed in the defendant’s affidavit, I am not disposed to accelerate proceedings which are not in conformity with the usual practice and which are shown to be entirely unnecessary and, at the same time, calculated to swell the amount of costs.

I, therefore, deny this motion for a receiver and leave each party to bear his own costs.