Lauer v. Smith

<p>DECEASED INSOLVENT DEBTORS.</p> <p>L The Remedial Provisions of Sec. 5464 Rev. Stat. are Available To all Creditors.</p> <p>The remedial provisions of Sec. 5464 Rev. Statu, permitting judgment creditor8 to proceed against equitable assets, are available for every judgment crédito* entitled to an execution against property, and apply to proceedings in aid of execution against estates of deceased persons, as well as to actions in favor of, and against, the living. Therefore, judgment having been rendered against an administrator, the eighteen months allowed by Sec. 6105 Rev. Stat., before which execution may not issue against an administrator, or the farther time allowed by court for the collection of assets, having expired, mnd there being no property in the hands of the administrator subject to levy an execution sufficient to satisfy the judgment, a proceeding in aid of execution to subject money in the hands of debtors of such estate is properly brought.</p> <p>i. Judgment Dismissing Proceeding in Aid of Execution not a Bar, When.</p> <p>A judgment, dismissing a proceeding in aid of execution to subject money in the hands of defendants due the estate of a deceased debtor, brought before the expiration of the eighteen months allowed by Sec. 6105 Rev. Stat., because prematurely brought but not Heard upon the merits, is not an adjudication of the rights of the parties concluding the bringing of another proceeding in aid of execution upon the same cause of action and between the same parties after the expiration of the eighteen months’ limitation, the probate court not having granted further time for the collection of assets.</p> <p>8. Only One Suit Upon Same Subject Matter Between Same Parties.</p> <p>A party is not permitted to have more than one lawsuit concerning the same subject, between the same parties, in the same court, and at the same time. Bringing more than one suit, as above, is vexatious and improper, for which the party so offending may be required to dismiss the vexatious suits, pay the costs made in bringing them, and, perhaps, subject him to an action for damages, but the fact of the bringing and dismissal of such suit will not amount to a complete defense to a good faith action.</p>