126 Ind. 123 | Ind. | 1890
— This was an action brought by the appellees against the appellants in the Wells Circuit Court to enjoin the collection of a judgment for costs.
The complaint alleges, substantially, that, on the 21st day of September, 1883, the appellants recovered a judgment for -costs against the appellees in the Wells Circuit Court in an action then pending therein, which said costs amounted to
To this complaint the court overruled a demurrer, and upon issue joined the cause was tried by the court, resulting in a finding and decree for the appellees, forever enjoining the appellants from any further attempts to enforce said judgment, and declaring the same satisfied.
The appellants sought, by proper motion, to have the decree so modified as to enjoin the collection of the execution in the hands of the sheriff only, leaving them at liberty to retax costs and take a new execution, but their motion was-denied. -
The errors properly assigned in this court are :
First. That the court erred in overruling the demurrer to. the complaint.
Third. That the court erred in overruling the motion of the appellants to modify the decree.
In our opinion the court erred in overruling the demurrer to the complaint. It is a familiar rule that a suitor who seeks equitable relief must affirmatively show in his complaint that he has first offered to do equity ; otherwise he has no standing in court. McWhinney v. Brinker, 64 Ind. 360; Lancaster v. DuHadway, 97 Ind. 565; Rowe v. Peabody, 102 Ind. 198; Roseberry v. Huff, 27 Ind. 12; City of South Bend v. University of Notre Dame, etc., 69 Ind. 344; Stilz v. City of Indianapolis, 81 Ind. 582; Cauldwell v. Curry, 93 Ind. 363; Jones v. Ewing, 107 Ind. 313.
As a result of this rule it has been held that an execution defendant can not maintain an action to enjoin the collection of an execution until he has first paid, or offered to pay, all there is due on such execution. Russell v. Cleary, 105 Ind. 502.
In the case last cited, which was an action to enjoin the collection of an execution issued on a judgment for costs, this court said : “ What we do decide is, that where an execution has been issued on a judgment which is confessedly right as to part of its amount, the execution defendant can not enjoin the collection of such execution until lie has first paid, or tendered that part thereof which is admitted to be right.”
It is settled in this State, that a judgment for costs draws interest. Church v. Hay, 93 Ind. 323; Hansford v. Van-Auhen, 79 Ind. 302; Palmer v. Glover, 73 Ind. 529.
The costs recovered by a judgment plaintiff constitute a part of the judgment on the cause of action. A judgment for costs belongs to the party who recovers it, upon the theory that he has paid, or is liable to pay, the costs as they accrue.
In this case, it appears by the complaint, that the appel
Having arrived at the conclusion that the complaint in this case is not sufficient to entitle the appellees to an injunction, it becomes unnecessary to consider the other errors assigned.
Judgment reversed, with directions to the circuit court to sustain the demurrer to the complaint.