Beck v. Fransham

21 Mont. 117 | Mont. | 1898

Hunt, J.

The order of. the lower court dissolving the temporary restraining order must be affirmed on two grounds:

First. The appellant here, who was the plaintiff in the action entitled “Beck v. O'Connor," had a perfectly plain, speedy, and adequate remedy at law by appeal from the judgment and order denying his motion for a new trial in that suit, and by executing a written undertaking, with two or more sureties, to the effect that they were bound in double the amount named in the judgment or order appealed from and costs. (Code of Civil Procedure, § 1726.) But, as appears by the records of this court, it was held that appellant was guilty of lachen in his-appeal in that action by failing to have the sureties on the appeal bond justify within twenty days after exceptions to their sufficiency had been duly filed by the respondents here, defendants in the action referred to. Appellant subsequently moved this court, by motion filed June 14, 1897, for leave to tile a new undertaking on appeal in said suit, and to permit a justification of the sureties thereon before this court, and to stay proceedings upon the judgment rendered in that suit by the district court of the Sixth judicial district in and for Carbon county, pending the determination of the appeal by this court. Counsel for appellant and respondents in that action filed briefs upon that motion, and thereafter, on July 10, 1897, we denied the plaintiff’s motion to file a new undertaking. This order was, in effect, a refusal to permit execution to be stayed. Such being the condition of the ease, plaintiff’s omission to comply with the law in respect to his undertaking in the suit of Beck v. O'Connor cannot be cured by the aid of a court of equity in enjoining the levy of execution issued in that case.

High'on Injunctions (Section 173), in discussing the general doctrine denying relief by injunction against the enforcement of a judgment, says: “And upon this point the rule is well established that courts of equity will not lend their aid, by injunction, against the enforcement of judgments when a sufficient remedy exists by appeal or writ of certiorari to revise the proceedings at law. A plain, adequate and specific remedy existing by appeal, he who is dissatisfied with a judgment must pursue that remedy, and will be denied relief by injunction when no sufficient reason is shown why the remedy at law is not pursued. ’ ’

Second. It is well established that one court is without power to interfere with the judgments or injunction-orders of another court of concurrent jurisdiction, unless it may be the court in which the suit is pending cannot, for lack of jurisdiction, grant the relief desired. The following authorities are in point: Crowley v. Davis, 37 Cal. 268; Anthony v. Dunlap, 8 Cal. 26; Scott v. Runner (Ind.) 44 N. E. 755; Works on Jurisdiction, p. 69; Beach on Injunctions, § 648.

The appellant having presented no case for injunction, the lower court correctly dissolved the temporary order.

Affirmed.

Pemberton, C. J., and Pigott, J., concur.