Sizer v. Miller — 9 Paige Ch. 605

Majority

p. 605

Sizer and others vs. Miller.

Headnote

The case of a creditor’s bill is an exception to the general rule, which re. quires all the material facts upon which an application for an ex parte in. junction is founded should be sworn to positively.

Where the complainant in a creditor’s bill resides at a distance from the debtor, the bill may be verified by the attorney or agent of the complainant who has had charge of the collection of the debt, and who has conducted the proceedings at law.

Two or more judgment creditors, whose executions have been returned un. satisfied, may join in a suit to obtain satisfaction of their debts, if the aggregate of the indebtedness exceeds one hundred dollars.

July 8.

This was an appeal from a decision of the vice chancellor of the eighth circuit, denying the defendant’s application to dissolve an injunction, and granting the motion of the complainants for the usual reference to appoint a receiver, upon a creditor’s hill against the judgment debtor alone. One of the complainants was a judgment creditor of the defendant upon a judgment recovered in the supreme court, on which there remained due $71,32, exclusive of interest. And the other complainants had also recovered judgments in the common pleas of Erie county and in the

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recorder’s court of the city of Buffalo, on each of which judgments there was due more than $100. The bill was verified by the complainant Sizer, who resided in Buffalo, in the usual manner. It was also verified by the oaths of the attorneys of the other complainants, who severally swore positively to the recovery of the judgments and the other proceedings in favor of their respective clients in the suits at law, and as to the amounts due thereon ; stating that their clients respectively resided in the city of New-York, and were not as well acquainted with any of the facts stated in the bill as the deponents.

W. H. Greene, for the appellant.

S. G. Haven, for the respondents.

None of the objections to the decision of the vice chancellor are well taken. Even if the want of an endorsement on the back of the injunction was material, which it was not, it would not afford any ground for dissolving the injunction; but it might show that the same ought to be set aside as irregularly issued. As to the verification of the bill by the attorneys, this court has frequently decided that in the case of creditors’ bills, where the complainants reside at a distance from their debtors, and have entrusted the collection of their debts to attorneys or agents residing near such debtors, which attorneys or agents have conducted the proceedings at law, the verification of the bill by the attorney or agent of the complainant is sufficient. The case of a creditor’s bill, where an injunction is sought for against the judgment debtor alone, is an exception to the general rule that all the material facts must be sworn to positively, in order to obtain a preliminary injunction ex parte. (Hammersly v. Wyckoff, 8 Paige’s Rep. 72.)

It is well settled that two or more creditors having judgments against the same, person, and who have exhausted their remedies at law by the return ,of executions against

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his real and personal estate unsatisfied, may join in a bill in this Court to reach his equitable interests, choses in action, and other property. And the statutory provision which prohibits the commencement of a suit in this court where the amount in controversy in such suit does not exceed $100, does not extend to such a case ; provided the aggregate amount of all the judgments, for the satisfaction of which the bill is filed, exceeds the amount specified in the statute.

There is no valid objection to the form of the order appealed from; and the objection, that the affidavits on the part of the defendant showed that a receiver of his property was unnecessary, was frivolous. The order appealed from is, therefore, affirmed with costs; and the proceedings are to be remitted to the vice chancellor.