Thomas v. McEwen

The cases of Cuyler v. Moreland, (6 Paige’s Rep. 273,) and of Thorn v. Badger, (8 Idem, 130,) dispose of the objection that the alias executions had not been returned at the time of filing this supplemental bill. The issuing of a second execution upon a judgment, after the first has been issued to the proper county and returned unsatisfied, does not render it necessary for the judgment creditor to wait until .the return of such new execution unsatisfied, before he 6an file his bill to reach the defendant’s property not liable to *135execution. To prevent' the right of the creditor to proceed in this court, upon the return of the first execution merely, while an alias fieri facias is in the hands of the sheriff, it must distinctly appear that the sheriff has levied, or at least that he can levy, upon sufficient property, under the execution in his hands, to satisfy the whole of the complainant’s debt. And if that fact does not appear upon the face of the bill itself, the defendant must bring it forward by plea or answer. The fact that alias executions have been issued and are still in the hands of the sheriff, upon these judgments, of course forms no good objection to this supplemental bill.

Nor is the objection of multifariousness sustainable. It is true the original bill stated that McEwen had more property, at the time of the filing of that bill, than was sufficient to satisfy the amount due on that judgment. But it does not follow from that statement that there will be sufficient to pay the debt, together with the costs of the complainant upon the original bill. < A part of the property acquired subsequently to the filing of that bill may therefore be necessary to pay the deficiency in the original suit. This forms such a connection between the original and the supplemental suits as to render it proper for the complainant to file a supplemental bill, instead of proceeding by a new original bill, to obtain satisfaction of the second judgment, as well as of the balance of the debt and costs in the first suit. On the other hand, if the property in controversy in the first suit should be more than sufficient to satisfy the amount of the first judgment, and the costs in the original suit, a part of such surplus may be required to pay the second judgment and the costs of the supplemental suit. The original and the supplemental suits are therefore properly united, as to all the defendants ; to save a double litigation between the complainant and those defendants in separate suits as to the property in controversy, which is claimed to have belonged to the judgment debtor, or rather to his creditors, as against the fraudulent- assignees thereof, at the time when the original bill was filed.

The vice chancellor was also right in supposing that the L89th rule was not intended to apply to the case of a supple*136mental bill, like the present. The necessary averments, as required by that rule, having been inserted in the original bill, that is sufficient for all the purposes which led to the adoption of that rule. And, independent of the requirements of that rule, if it does not appear upon the face of the bill itself that the amount of the property in controversy in the suit does not exceed one hundred dollars, the defendant can neither demur, nor move to dismiss the bill, upon the ground that the subject matter of the suit is beneath the dignity of the court. The proper remedy, in cases- coming within the statute, (2 R. S. 173, § 37,) and where the value of the matter in controversy does not appear upon the face of the bill, is to raise the objection by plea or answer; or the defendant may insist upon that objection at the hearing when the fact appears, either upon the pleadings or the proofs, that the matter in controversy does not exceed one hundred dollars.

The order appealed from is not erroneous. It must therefore be affirmed, with costs.