Durand & Co. v. Gray, Kingman & Collins

Citations

• 129 Ill. 9

Syllabus

<p>1. Creditor’s bill—prerequisites—remedy at law inadequate. A court of equity will never lend its aid when there is an adequate remedy at law. It must, therefore, appear in a creditor’s bill that a court of law is incompetent to reach the property of the defendant in execution, either by reason of its peculiar character, or by inability to discover it.</p> <p>2. Same—the statute and the common law. So much of section 49 of the Chancery Code as provides that when an execution issued against the property of a defendant, on a judgment at law, shall be returned unsatisfied, in whole or in part, the party suing out the execution may file a creditor’s bill against such defendant and any other person, to compel the discovery of any property or thing in action, etc., introduces no new principle, and is but affirmative of the common law.</p> <p>3. Same—execution—to what county. To entitle a judgment creditor to maintain a creditor’s bill against his debtor, he must have an execution issued to the sheriff of thei county where the debtor resides and carries on business, or where he did reside when the suit was brought. If the plaintiff in the execution knows that the defendant in execution has property in a particular county, he should send an execution to that county. One should also be sent to every county in which there is a legal presumption that the defendant has property.</p> <p>4. Where the judgment is in a court which may send its final process to any county in the State, the complainant who comes into equity for relief upon the ground that he has exhausted his legal remedy, must show affirmatively, by his bill, that he has issued his execution to the sheriff of the county where the defendant resided at the time such execution was issued, or he must, by proper averments, show a sufficient and legal excuse for not sending process to that county.</p> <p>5. If a person resides and does business in the same county, it is legally presumed that he has property there liable