DANA vs. STANFORD

DANA vs. STANFORD. Twelfth Judicial District Court, August. 1857. Creditor’s Bill—Execution. 13ie original remedy, by creditor’s-bill is not impaired" or superseded, by the provisions bf the statute regulating proceedings .supplementary to execution. Where a defendant confesses tlíat he has no property, there is no necessity for an execution at all, as it would then be utterly useless. Ik this case, the plaintiff, a judgmónt creditor of Samuel Deitz, filed a Complaint in the nature of a creditor’s bill to set aside an assignment made by Deitz to Stanford Brothers, and to have certain property and assets applied, to the payment of his judgment. The - complaint shows that the plaintiff’s judgment was for "S3,602.50. recovered in'the Twelfth District Court on" the-6th day of June,.'1857; that execution issued to the sheriff on the same day ;. Ihst the sheriff after, making diligent search and inquiry for -property fef DmiiK,czi-which to "levy said execution and make the money therein specified, was rnable to'-find any property, and afterwards, on the 11th •dry ef íTune, 1857, b$, the sheriff, returned the execution nulla bona. Bdso-glerp® ihrkm the 18th of April'-last- and after ¡he jfeiatifPe debt was contracted, said Deite was carrying- on a. large business 'in San Francisco and Sacramento, and owned, property of the vd«@®f $40,000 which he assigned and transferred to- Stanford Brothers ; that _ at the time of this transfer, Beite was ia failing circuiastamses, and that Stanford Brothers .were among Ms creditors, and-.that the property so transferred constituted all Beite’s property.; that such transfer was made for the purpose of 'preferring Stanford Brothers; and that Beite retained an interest in the property; and that the transaction Was made to hinder, delay, or- defraud the other creditors, of Beite, and especially the plaintiff. The plaintiff therefore,prayed •- to have the assignment set aside' as .fraudulent and void, as aggiasf Mm, and to have a sufficient amount of property appEed to ,th© payment of his judgment. The defendants, Stanford Brothers-, demon? to the complaint; on Mae 1. A creditor's bill is not'allowable 'in this' State, the Legislate© having provided an adequate, remedy by proceedings " supplemental to execution." 2. The aetibn is premature, the execution having been returned by the Sheriff, after having been in his hands only jwe days. 8. The complaint should have -set forth-the particular assignment, go that the court' could judge whether it was fraudulent or not. • J8. M. Bowman, for plaintiff. Crocked Page, for defendant, [MAJORITY — Norton, J.] Norton, J. It has .been held by this.' court, and &ko by the Sr preme Court, that the original remedy by creditor’s bill, in cases lite this, is. not impaired or superseded by the statute allowing certain proceedings supplementary to- execution, the statute being cumulative to the original .chancery remedy,- This is' not a bill for discovery. The complaint shows that all the property of the debtor- was assigned to Stanfom. Brothers, -and -mentions the particular property, and shows that Deite -had no other, property. There can be-no objection to the complaint on-this ground. The defendants counsel cites, some authority in Hew York showing tihafca creditor’s bill cannot be maintained, until after execution has expiredbut those cases were cited under a particular statute in that ■ State, and are not applicable to a case like this. It is stated in the complaint that the debtor has no property in his hands whatever, and that it has ¿11 been transferred to Stanford Brothers. This being confessed by the demurrer, there was no necessity for an execution at all, as the effort to pursue the debtor’s property under such circumstances was utterly uséless. The' Supreme Court, in a recent case, has decided that a creditor’s bill may be maintained in some cases before judgment', The complaint states that this assignment was made to prefer creditors. If so, it was fraudulent as to the plaintiff. It also shows that the debtor retained an interest in the property assigned, and if so,- the assignment was void on this ground also, and there was no necessity for.setting out the particular agreement or instrument by which the assignment was made. The demurrer is overruled with leave to defendants to answer, by paying costs. =■