Davidson v. Floyd

15 Fla. 667 | Fla. | 1876

RANDALL, C. J.,

delivered the opinion of the court.

The appellant was the County Judge of Gadsden county. Appellee, in 1869, filed a petition with the county j udge stating the death of one Stubbs, requesting the issuing of letters of administration to the sheriff, and the judge granted the petition. The administrator, for some reason, neglected to take possession , of the property of the estate of Stubbs. The judge demanded payment of his fees, amounting to some eleven dollars, from the appellee, and such fees being unpaid, the judge, on the 15th April, 3 875, issued an execution ■ for the amount and interest, amounting, in all, to some sixteen dollars, under .which the sheriff levied on one black-mare, the property of appellee, and advertised her for sale.

The appellee now files his bill in equity, claiming that the costs were not legally chargeable to him, that the execution was illegally issued, and praying that an injunction be issued restraining the sale, and that the property be returned to him.' A dopy of the execution is annexed as. an exhibit,, and also a copy of an account for the costs in question rendered by the judge, in which the costs are charged against the administrator.

The appellant answers the bill, insisting that the amount for fees and .costs was properly chargeable to complainant,, and that the execution was issued according to law.

After the taking of testimony and a hearing, an injunction was decreed enjoining the sale and all further proceedings under the execution.

There is no pretence in the pleadings that any judgment or order of the county judge was ever entered against theappellee, or that his liability to pay the costs in question was established in any .manner, and the execution, upon its face, showed that there was no such judgment.

While it is true that judges of probate are authorized to. issue executions for costs which may accrue in their courts, (Chapter 157, Laws of 1847,) yet it is necessary, before such writ can issue, that some judicial judgment or order, establishing the liability of parties and the amount due, should, be made according to the ordinary practice of courts. It was-not contemplated that an execution might be issued against parties whose liability to pay was not so established, and who had no opportunity to contest the liability as well as the amount of such indebtedness claimed.

But though the execution in this case was improperly issued and levied, it does not follow that it is a proper case for the exercise of chancery jurisdiction. The levy was made upon a mare, and the owner has a complete and adequate remedy at law for the wrongful seizure. It is only in cases where' the chattel is of such peculiar quality that the remedy at law by damages' would be utterly inadequate and leave the-party in a state of irremediable loss, that a court of equity will interfere; as, where the thing is of peculiar value, as being ancient, or the production of some distinguished artist, or a family relic or ornament. (2 Story’s Eq. Jur., Section 709, and cases cited; Fells vs. Read, 3 Ves. Jr., 70; Bryan vs. Long, 14 Fla., 366; McCollum vs. Morrison, 14 Fla., 414; Bowes vs. Hoeg, 15 Fla., 403.)

If the sheriff who made the levy in this case was a trespasser, or holds the property without .lawful authority, an action of trespass, trover or other appropriate action at law will afford adequate remedy for the wrong. There is no ground shown in this case for the interposition of the extraordinary powers of the court of chancery.

The decree is reversed, and the cause remanded, with directions to dismiss the bill.