Wheeler v. Heermans
New York Court of Chancery
This was a creditor’s suit on a judgment recovered against both of the defendants, in the court of common pleas of the county of Dutchess, to which county an execution against their property had been issued and returned unsatisfied. The only statement in the bill relative to the residence of the defendants, was that they reside in the county of Dutchess. The defendants appeared separately and demurred to the bill for want of equity.
1Opinion of the Court
The Assistant Vice-Chancellor.
The allegation in the bill that the defendants reside in the county of Dutchess, applies to the time of filing the bill. It is not an allegation that they resided in that county when the execution was issued.
The defendants insist, that the bill, by reason of this omission fails to show that the complainant has exhausted his remedy at law: That it is not sufficient to set forth a judgment in the Dutchess Common Pleas, and an execution to that county, unless it appears that the defendants resided in Dutchess county; or that for some reason, the issuing of an…
2Cases cited3 opinions
- Reed v. WheatonNew York Court of Chancery · 1839
- Merchants & Mechanics' Bank v. GriffithNew York Court of Chancery · 1844
- Leggett v. HopkinsNew York Court of Chancery · 1838