greater responsibility than the injured one, or in a different line of employment, so long as both are in the same general business. Mining Co. v. Kitts, (Mich.) 3 N. W. Rep. 470. The rule obtains regardless of the fact that one employe may be the superior in rank of others in the same general undertaking, unless he occupies the place of viceprincipal. Railway Co. v. Adams, (Ind.) 5 N. E. Rep. 187; Copper v. Railroad Co., (Ind.) 2 N. E. Rep. 749; Fraker v. Railway Co., (Minn.) 19 N. W. Rep. 349; Peschel v. Railway Co., (Wis.) 21 N. W. Rep. 269. A mining boss is a fellow-servant of other employes. Reese v. Biddle, (Pa.) 3 Atl. Rep. 813. And a conductor is held to be a fellow-servant of a brakeman. Pease v. Railway Co., (Wis.) 20 N. W. Rep. 908. On the other hand, in limitation of the general rule, it is held that the master is liable for injuries occurring to an employe while doing an act beyond the scope of his employment at the direction of a co-employe having authority over him. Gilmore v. Railway Co., 18 Fed. Rep. 866. So, also, where a servant is injured through the negligence of an employe in providing suitable material or appliances, the latter being authorized or required by his employment to discharge this duty. Id.; Kruger v. Railway Co., (Ind.) 11 N. E. Rep. 957; Benzing v. Steinway, (N. Y.) 5 N. E. Rep. 449. And the broad principle is laid down that where a servant is invested with control or superior authority over another employe, and injury is incurred by the latter through the negligent exercise of the authority so conferred, the master is liable. Thompson v. Railway Co., 14 Fed. Rep. 564; Gravelle v. Railway Co., 10 Fed. Rep. 711; Ross v. Railway Co., 8 Fed. Rep. 544, 5 Sup. Ct. Rep. 184; Railway Co. v. Peregoy, (Kan.) 14 Pac. Rep. 7; Mason v. Machine-Works, 28 Fed. Rep. 228. A station agent is held not to be a fellow-servant of a carpenter employed by the railroad company in a department wholly disconnected from that in which the agent is working. Palmer v. Railway Co., (Idaho,) 13 Pac. Rep. 425. And a common hand engaged in the business of relaying a track under the control of a foreman is not in the same employment within the sense of the rule as one who is managing a switch-engine which is used in moving cars, and not engaged in the work of relaying said track. Garrahy v. Railroad Co., 25 Fed. Rep. 258. At common law, where the master delegates to any officer, servant, or agent, high or low, the performance of any duty which really belongs to the master himself, the latter is not relieved from liability for the negligent acts of such servant. Railroad Co. v. Fox, (Kan.) 3 Pac. Rep. 320; Railroad Co. v. Moore, (Kan.) 1 Pac. Rep. 644. So it is held, directly contrary to the decision in the case of Smith v. Potter, supra, that an inspector of cars is not a fellow-servant of a brakeman. Braun v. Railroad Co., (Iowa,) 6 N. W. Rep. 5. And when a railroad company confers authority upon one of its employes to take charge and control of a gang of men, in carrying on some particular branch of its business, such servant in governing and directing the movements of the men under his charge with respect to that branch of its business, is a representative of the company, and not a fellow-servant of the men under his control. Railway Co. v. Hawk, (Ill.) 12 N. E. Rep. 253; Railway Co. v. Lundstrum, (Neb.) 20 N. W. Rep. 198.

(5 Utah, 334)

ENRIGHT and others v. GRANT and Wife.

(Supreme Court of Utah. October 17, 1887.)

1. CREDITORS' BILL-PLEADING-INSOLVENCY OF JUDGMENT DEBTOR.

A creditors' bill by two plaintiffs, one of whom alleges a judgment, with execution, and return of nulla bona; the other, a judgment without execution, and a general allegation that plaintiffs know of no property upon which a levy can be made, and that the judgments will remain wholly unsatisfied unless they can resort to equity, is sufficient allegation of insolvency to sustain the bill as to the second judg ment, in view of the fact that the judgment creditors are joined as co-plaintiffs. HENDERSON, J., dissenting.

2. SAME STATUTORY REMEDY NOT EXCLUSIVE-SEQUESTRATION.

The "proceedings supplemental to execution" established by Code Civil Proc. Utah, c. 2, tit. 9, Laws 1884, are not exclusive of the common-law and equitable remedies; and a creditor may bring an original action in the district court, in the nature of a creditors' bill, to sequester the debtor's property, and subject it to the payment of his debt.

3. SAME JOINDER OF CREDITORS.

Creditors on separate judgments may join as co-plaintiffs, and enforce their rights by creditors' bill, in one action.

4. JUDGMENT-BY DEFAULT-OPENING-DISCRETION OF COURT-REVIEW ON APPEAL. Where a motion to open a default judgment is addressed to the discretion of the trial court, its action will not be reviewed on appeal unless the discretion appears to have been abused.

Appeal from district court, Third district; C. S. ZANE, Judge.

Arthur Brown, for appellants. E. D. Hoge and W. I. Snyder, for respondents.

HENDERSON, J. The complaint in this case is in the nature of a judgment creditor's bill. It avers that plaintiffs Enright and Kelly are cepartners; that as such, on the thirty-first day of December, 1883, they recovered a judgment in the Third district court against Richard Grant for $866.55 and costs, and that on that day an execution was issued and delivered to the sheriff of Summit county, where the defendants reside; "that said execution has been duly returned by said sheriff wholly unsatisfied;" that on the ninth day of April, 1884, the plaintiff Bremer obtained a judgment against defendant Richard Grant in the Third district court for $426.07, and costs, (there is no allegation that execution has been issued or returned;) that defendants are husband and wife; that, after the indebtedness accrued upon which the said judgments were rendered, the defendant Richard Grant was the owner in his own right of certain real estate in Park City; that he sold it, and with the proceeds purchased lot 11, in block 22, in Park City, and caused it to be conveyed to his wife, Bridget Grant, and built thereon a building, and purchased fixtures and stock necessary to conduct a saloon, and conducted a saloon business in the name of Bridget Grant, pretending it was hers; that Bridget had no property whatever, but that all of said property, fixtures, and stock was purchased with money belonging to Richard Grant, and that Bridget's title thereto was without consideration, and was wholly void, as against the plaintiffs; that Bridget has sold an undivided half of the property to one Clark, but that she still retains one-half, which, plaintiffs allege, in fact belongs to Richard, and is subject to their rights as his creditors; that Richard Grant was also the owner of certain mining claims in Summit county, which he sold to one M. Shaughnessy, and received his promissory note therefor for $3,000, and that he assigned said note without consideration to his wife, and that his said wife has commenced suit on said note for the collection thereof, which suit is now pending; that all of said conveyances and transfers of said lot, saloon, and note to Bridget was in trust for Richard, and was done for the purpose of hindering, delaying, and defrauding the creditors of Richard, by concealing it from and putting it beyond the reach of such creditors; and that Richard has always remained in the possession and control of the whole thereof; "that the defendant Richard Grant has not any property other than that specified herein, to the knowledge of plaintiffs, out of which the execution on the judgments aforesaid could be satisfied, in whole or in part; and that, unless the said property can be applied to the payment of said judgments, the same must remain wholly unpaid." Judgment is demanded that the conveyances and transfers to Bridget be declared void as to plaintiffs, and that she be decreed to hold the same in trust for Richard and his creditors; and that the defendant's property, real, personal, and equitable, of whatever nature, be sequestered and applied to the payment of the judgments, and prays for injunction and receiver according to the practice in courts of equity, and that all of the property, real, personal, and equitable, of Richard, be transferred to such receiver.

To this complaint the defendants demurred upon the following grounds: First, that the court has no jurisdiction of the subject of this action, for the reasons that the "proceedings supplemental to execution" established by the Code of Civil Procedure of this territory are a substitute for a creditors' bill, and constitute the only manner of obtaining the relief sought; second, that said complaint does not state facts sufficient to constitute a cause of action; third, that there is a misjoinder of plaintiffs, for the reason that plaintiffs Enright & Kelly and said plaintiff Bremer do not stand in the same situation as creditors, and that they have no common interest as creditors; fourth, that several causes of action have been improperly united, for the reason that the

cause of action of said plaintiffs Enright & Kelly, and the cause of said plaintiff Bremer are united in this action.

February 20, 1886, the court overruled the demurrer, and allowed 10 days to answer, and, no answer being filed within the time allowed, default was entered, the cause brought to hearing October 26, 1886, and, on hearing, the court found the facts substantially as stated in the complaint, and made a decree that the plaintiffs by virtue of their judgment, and the commencement of this action, have a lien upon the property hereinafter described, which lien took effect on the thirty-first day of December, 1883. That the claim and title of Bridget Grant, of, in, and to an undivided one-half of lot 11 of block 22 of Park City, Summit county, Utah territory, together with the saloon building thereon, and the saloon fixtures, furniture, and stock, is without consideration, and is fraudulent and void, as against the plaintiffs in this action. That the indorsement and assignment of the promissory note of M. Shaughnessy for $3,000 from Richard Grant to Bridget Grant be, and the same is hereby, set aside and deemed to be void, and that defendants reclaim their costs taxed at the sum of $51.05.

On the twelfth day of February, 1887, the defendants moved to vacate the decree and default, on the ground that the decree had been rendered without evidence as to the fraud charged in the complaint, and on account of the excusable neglect of the defendants and their attorneys. Various affidavits were read in support of the second charge alleged, and rebutting atidavits were also read. The motion was denied. The defendants appeal from the decree, and from the order denying the motion of defendants.

The first question presented is whether an original complaint in the nature of a creditors' bill can be maintained, or whether the supplementary proceedings provided for by chapter 2, tit. 9, Code Civ. Proc. 1884, (Laws 1884, pp. 266-268,) is a substitute therefor, and precludes this action. Section 3, c. 55, p. 154, Laws 1854, provides as follows: "This Code establishes the law of this territory respecting the subjects to which it relates;" and section 172, p. 183, provides that "there is in this territory but one form of civil action for the enforcement or protection of private rights, and the redress or prevention of private wrongs." The argument of appellant is that the supplemental procedure above referred to is the only provision in the Code; that it takes the place of and precludes action by original complaint in the nature of a creditors' bill. The organic act (section 1868, Rev. St. U. S.) provides that the "supreme court and the district courts, respectively, of every territory, shall possess chancery as well as common-law jurisdiction." The mode of procedure and practice in the territorial courts is governed by the laws of the territory, (Hornbuckle v. Toombs, 18 Wall. 648;) but the jurisdiction of the district and supreme courts, under the section last referred to, cannot be abridged or legislated away by the territory, (People v. Clayton, 11 Pac. Rep. 206; Bank v. County of Yankton, 101 U. S. 129; Stevenson v. Moody, 12 Pac. Rep. 902; Dunphy v. Kleinsmith, 11 Wall. 610.) The jurisdiction thus conferred upon the district and supreme courts of the territory is such jurisdiction, at common law and in equity, as was exercised by the English common-law courts; and to determine whether such courts have jurisdiction over an equitable cause of action, and whether a plain, adequate, and complete remedy exists at law, so as to prevent resort to an equitable action, reference must be had to the principles of the common law of England. Robinson v. Campbell, 3 Wheat. 212. This is recognized by the Code of Civil Procedure, which enacts "that the jurisdiction of district courts extends to all civil actions for relief formerly given in courts of equity." Laws Utah 1884, p. 159.

If the statute in relation to supplementary proceedings on execution is to be regarded as a statute merely prescribing the practice or mode of procedure upon bills in the nature of creditors' bills, then it should be followed, and it would prohibit any other mode. I think it is plain that it is not to be so con

strued. It is a statutory proceeding providing for a summary process, but its efficiency and utility depends much upon statutory construction. Its power to reach creditors or their property which may be outside the limits of the judicial district in which the proceedings are had, may be doubted. There is no provision for a receiver, and it may be said that it does not purport to be a direction as to how an independent equitable jurisdiction shall be exercised, but only to provide a speedy and summary proceeding to which the creditor may resort if he sees fit to do so. Reed v. Baker, 42 Mich. 272, 3 N. W. Rep. 959. Original suits brought by creditors in the nature of creditors' bills is a well-recognized subject of equitable jurisdiction, both in England and in this country, wherein the courts will proceed, according to the established principles and course of equity, to sequester and administer the estate of a debtor, and apply it to the liquidation of the indebtedness. Where a remedy exists at common law, and a new remedy is given by statute, and there are no negative words in the statute indicating that the new remedy is to be exclusive, the presumption is that it is meant to be cumulative, and a party may at his option pursue either the statutory or common-law remedy. Cooley, Torts, 651, and cases cited in note 1. In my opinion the statute under consideration is not a substitute for creditors' suits, and was consequently no bar to this action. Freem. Ex'ns, § 394.

It is also insisted that there is a misjoinder of plaintiffs and of causes of action. The right of several judgment creditors to join as co-plaintiffs, and enforce their rights by creditor's bill in one action, is established by the great preponderance of precedent, and should be favored as preventing multiplicity of suits. Story, Eq. Pl. § 537; Dix v. Briggs, 9 Paige, 595; 1 Pom. Eq. Jur. § 261, note 1; 2 Story, Eq. Jur. 890; Brinkerhoff v. Brown, 6 Johns. Ch. 139, 151, and 156; Bisp. Eq. § 527.

The second cause of demurrer-"that the complaint does not state facts sufficient to constitute a cause of action"-remains to be considered. It is contended that, as no execution had been issued and returned upon the judgment of plaintiff Bremer, no cause of action existed in his favor, and that the demurrer should have been sustained, and that the decree in his favor cannot be sustained. In all kinds and classes of creditors' suits, equity will not take cognizance where there is a remedy at law.

Counsel for appellants have cited us to various decisions in Michigan and New York holding that, before a bill can be maintained in equity, an execution must be issued and returned unsatisfied, and that this is jurisdictional. The courts of these states early held this rule, and, in both, the rule has passed into express statutory enactments. The general rule, where it is not regulated by statute, is that a judgment must be obtained, and certain steps taken, before equity will intervene; but there is much conflict in the cases as to how far the creditor must proceed before he can resort to equity. Much of this conflict arises from the effect that is given to judgments and executions by different statutes in various jurisdictions. 3 Pom. Eq. Jur. 464; Trask v. Green, 9 Mich. 358.

But the reported cases all agree that the prime inquiry is as to whether the complaint shows that there is no remedy at law; and where the bill is filed, as in this case, to reach choses in action and personal property, in such shape that no levy can be made upon it, or to reach real estate in which the debtor has but an equitable interest, it must be shown that the debtor has no other property upon which execution can be levied, and payment of the debt enforced; and, as before stated, the general rule is that this is shown by the issue of the execution, and its return nulla bona. This is conclusive evidence. But if this fact is established by other evidence, or in other ways, I can see no reason why it should not have the same effect. In the case of Case v. Beauregard, 101 U. S. 688, Mr. Justice STRONG, Speaking for the court, upon this subject, says: "But, after all, the judgment and fruitless execution are

only evidence that the creditor's legal remedies have been exhausted, or that he is without legal remedy at law. They are not the only possible means of proof. The necessity of a resort to a court of equity may be made otherwise to appear. Accordingly, the rule, though general, is not without many exceptions. Neither law nor equity requires a meaningless form." When it appears from the bill that the debtor is insolvent, and that the issuing of an execution would afford no relief, it is not a necessary prerequisite to equitable interference. Case v. Beauregard, supra; Turner v. Adams, 46 Mo. 95; Postlewait v. Keeler, 3 Iowa, 365; Bank v. Harvey, 16 Iowa, 141; Brainard v. Van Kuran, 22 Iowa, 261; Botsford v. Beers, 11 Conn. 369; Kipper v. Glancey, 2 Blackf. 356; Payne v. Sheldon, 63 Barb. 169; Cornell v. Radway, 22 Wis. 260; Barnes v. Dow, (Vt.) 10 Atl. Rep. 258; Prisay v. Hogan, 53 Me. 554; Bisp. Eq. §§ 526, 527; Tabb v. Williams, 4 Jones, Eq. 352. When it comes to the proof, it may be difficult to establish, but we are dealing with it now as a pleading, and not as to what would constitute sufficient proof under it; but the general rule above referred to is a stringent one, and the allegation should be clear and explicit of the debtor's insolvency before equity can interfere. Bisp. Eq., supra.

Does this complaint make such allegation? We are now considering this complaint with reference to plaintiff Bremer, and for the purpose it must be considered as a complaint filed by him alone. The plaintiffs have seen fit to join together in the action, and they must show a joint right, or they can have no right; that is to say, the pleadings must show that all of the plaintiffs have a proper cause of action against the defendants. We have, then, in addition to the averment above quoted, an allegation by a creditor that an execution has been issued but a short time before, upon the judgment of another cred-' itor, and returned nulla bona. I cannot believe that such an allegation, in view of the stringency of the general rule above referred to, can be considered as such a positive, direct, and unambiguous allegation of insolvency as to show on its face that the creditor has exhausted all his legal remedy. I do not forget the rule that, when a condition of things is once shown to exist, there is a presumption that it continues; and it may be said that the return of this execution by the sheriff but a few months before should be considered as establishing the fact that the debtor had no property, until it is rebutted. But I do not consider that rule or presumption of sufficient strength to overcome or constitute an exception to the stringent rule before stated. I am inclined to the opinion that this complaint does not show a cause of action on the part of plaintiff Bremer. But my associates are both of the opinion that the allegation of the issuing and return of the execution on the Enright & Kelly judgment unsatisfied, together with the allegation that the plaintiffs know of no property upon which an execution can be levied, and that the judgments must remain wholly unsatisfied, unless they can resort to equity, is a sufficient allegation of insolvency to bring it within the exception, in view of the fact that they are joined together as co-plaintiffs.

The objection that the decree was rendered without evidence is not well taken, if that were necessary. The decree recites the fact that evidence necessary to enable the court to render judgment was given.

The motion to set aside the decree and open the default was addressed to the discretion of the district court, and could only be reviewed by this court when the discretion has been abused, which we are not prepared to say in this case. Howe v. Independence Co., 29 Cal. 72; Bailey v. Taaffe, Id. 422; Coleman v. Rankin, 37 Cal. 247; People v. Rains, 23 Cal. 127.

The decree appealed from should be affirmed.

ZANE, C. J., and BOREMAN, J., concur.