Secor v. Clark

Headnote

Specific lien in aid of collection of judgment—When party limited to execution.

Where it appears that plaintiffs have recovered a judgment against defendant, based on a claim for money of plaintiffs wrongfully and in violation of law retained by Mm, the judgment not being against defendant in a fiduciary capacity, and the moneys retained not having been held in such capacity, and having been intermixed with his own' —there can be no specific lien declared on any portion of defendant’s property in aid of the collection of such judgment, and plaintiffs’ remedy is limited to an execution against defendant’s property.

Appeal-from judgment sustaining a demurrer.

The complaint herein alleged the commencement of an action by the present plaintiffs against Lemuel B. Clark, this defendant’s testator; and set forth at length the complaint therein (the facts of which are fully

stated in the opinion of the court in the last reported case, ante p. 494); the entry of judgment therein that the assignment there in suit was void, and that plaintiffs recover the sum of $1,667.31; the death of the defendant therein, and the appointment of the defendant here as his executrix—and proceeded as follows : “ That said Lemuel B. Clark deposited the $10,000 above mentioned in the Hanover National Bank, on or about February 23, 1886, to his own account, and paid these plaintiffs the $8,500 above mentioned therefrom; and that the balance of $1,500 remained therein ; and that as these plaintiffs are informed and believe, said Clark continued to make deposits to his said account and to draw therefrom, to the time of his death, and that the defendant herein, after obtaining letters testamentary, as above alleged and by virtue thereof, drew from said bank the sum of $3,000 or thereabouts, and closed said account of said Lemuel B. Clark with said bank. That payment of said sum of $1,500, with interest from February 25, 1886, has been demanded of said defendant herein, and that no part thereof or of said judgment has been paid. Wherefore these plaintiffs demand judgment against said defendant, that the above judgment be declared a lien upon the balance so drawn by her from said bank, to the extent of said $1,500, with interest from February 25, 1886, and directing her to pay the same; and that they have judgment against said defendant for the costs of this action.”

The defendant demurred to the complaint, upon the ground, among others, that it did not state facts showing a cause of action.