Hayes v. Frohock

56 Fla. 794 | Fla. | 1908

Whitfield, J.

The appellant, James H. Hayes, brought a suit in equity in the Circuit Court for Dade County to enjoin the sheriff from making a sale of real estate situated in Dade county under an execution issued from the Oircuit Court for Dade county upon a judgment obtained by the Doty & Stowe Company against Hayes in the County Court for Dhval county. The bill of complaint alleges that the judgment of the county court for Duval county upon which the execution issued, is void because the court had no jurisdiction of the subject-matter and the parties. An injunction bond appears in the transcript indicating- that an injunction was issued' as prayed. The defendants by answer aver that the amount of the claim on which, judgment was obtained was less .than $500.00 and within the jurisdiction of the court; that the defendant Hayes, appeared in the cause and filled pleas both in abatement and in bar; that a transcript of the judgment of the County Count of Duval county was recorded in Dade county, upon which execution issued from the Circuit Court for Dade county in accordance with the statutes; that the legality of the execution was determined by the circuit court for Dade county under the statute, and that no writ of error thereto was taken. Copies of the affidavit and judgment in the proceeding's to determine the legality of the execution were filed with the answer. The court dissolved the injunction and dismissed the bill, stating that the matters set forth in the bill of complaint had been already ' adjudicated in a proceeding- upon an affidavit of illegality. An appeal was taken by Hayes.

Equity will not enjoin the sale of real estate under an execution where the legality of the execution has been adjudicated in proceedings at law taken for that purpose by the defendant in execution, and no independent equity is shown. The statute provides that the court before which an execution is returnable, may upon stated proceedings and for good cause, direct a stay of the same, and the suspension of proceedings thereon. Section 1624 Gen. Stats.; Houston v. Bradford, 35 Fla. 490, 17 South. Rep. 664. The proceeding upon affidavit! of illegality being statutory and at law may be reviewed by writ of error. Clinton v. Colclough. 54 Fla. 520, 44 South. Rep. 878. See also the remedy afforded by section 1625 Gen. Stats.; Barnett v. Hickson, 52 Fla. 457, 41 South. Rep. 606.

It appears that the legality of the execution was determined under the statutory proceedings and no writ of error was taken to the judgment of the co-urt dismissing the proceedings. The matter is res ad judicata by the proceeding at law taken by the defendant in execution, who cannot have such proceeding reviewed in equity.

The decree is 'affirmed.

Shackleford, C. j., and Cockrell, J., concur. Taylor, Hocker and Parkhill, JJ., concur in the opinion.