Opinion
Docket No. 41, Calendar No. 34,067.
Submitted June 5, 1929.
Decided July 8, 1929.
Appeal from Wayne; Moynihan (Joseph A.), J. Submitted June 5, 1929. (Docket No. 41, Calendar No. 34,067.) Decided July 8, 1929.
Creditors' bill by Frank P. Van Buren and another against the Armstrong-Jewell Construction Company, a Michigan corporation, John E. Armstrong, Ernest Jewell, and Frank W. Killam. From a decree for plaintiffs, defendants appeal. Affirmed.
Schmalzriedt, Frye, Granse Frye, for plaintiffs. Leopold D. Mayer, for defendants Armstrong and Jewell.
Plaintiffs had judgment against defendant corporation. An execution was issued and at once placed in the hands of the sheriff. He retained it until the day following the return day, when he returned it "wholly unsatisfied."
Plaintiffs filed this judgment creditors' bill seeking to reach assets of the judgment debtor in the hands of the individual defendants. From a decree for plaintiffs, defendants have appealed.
A plaintiff, to maintain such a bill, must ordinarily show that he is remediless at law, "and of this the issuance of an execution and its return unsatisfied are the most acceptable proof." 15 C. J. p. 1397.
The return of the officer here was sufficient to authorize this bill based on the judgment upon which the execution issued. See Newlove v. Pennock, 123 Mich. 260; 15 C. J. p. 1400.
Defendants have numerous objections to evidence of plaintiffs. As defendants put in no evidence, the inquiry is not whether all of plaintiffs' evidence was properly received, but whether there is competent evidence to sustain decree. Much of plaintiffs' case was made by proof of admissions against interest by defendants. This was clearly competent ( Cady v. Doxtator, 193 Mich. 170 [14 A. L. A. 10]), and sustains the decree.
On full consideration of the case, we conclude that the decree is affirmed, with costs to plaintiffs.
NORTH, C.J., and FEAD, WIEST, McDONALD, POTTER, and SHARPE, JJ., concurred. FELLOWS, J., concurred in the result.