Collier v. Falk, 61 Ala. 105

Collier v. Falk

61 Ala. 105 | Ala. | 1878

BBICKELL, C. J.

"Wiggins, the sheriff, having the executions issued on the judgments at law, and bound to levy them according to their mandate, was improperly made a party defendant to the bill. He is without interest in the controversy, has no right involved in it, and no other connection with it, than that into which his duty as executive officer of the court compels him. There is a manifest impropriety in drawing him into the litigation between the plaintiff and the defendants in the judgments and executions, when he is simply in the discharge of his official duty, and has no right or interest involved. The writ of injunction restraining the enforcement of the judgment, is as effectual, when directed to the plaintiffs in the judgment, as it would be if directed to him and the sheriff; and obedience to it, the sheriff must yield, when notified of it, as fully as if he were a party to the suit. — Smith v. Rogers, 1 Stew. & Port. 317; Shroder v. Walker, 8 Ala. 244.

Falk is the only material defendant, within whose knowledge every fact that can give the bill equity, (if any it has) rests, and whose rights and interests alone are involved.. We have carefully scrutinized the bill and answer, and there is not a fact alleged in the one, which could by possibility invest a court of equity with jurisdiction to arrest the execu*108tion of a judgment at law, not fully and emphatically denied by the other. The principle is too firmly settled, for any special discussion of it, that when a temporary injunction is granted simply on the allegations of the bill, without notice to the parties adversely interested, and the answer of the material defendant within whose knowledge the facts consti•tuting the equity of the bill must lie, fully and positively denies them, the injunction must on motion be dissolved, unless the court can find in the whole case, some good, substantial reason, for retaining it. — 1 Brick. Dig. 677, §§ 548-549. There is no fact shown which would have justified the chancellor in retaining the injunction, and he did not err in decreeing its dissolution. Let the decree be affirmed.