34 W. Va. 794 | W. Va. | 1891
This was a suit in chancery instituted by the plaintiff, and present appellant J. E. Howell, against John Thomason and David H. Lilly and J. R. McCullom, defendants below and present appellees.
It appears from the bill that on the 27th of July, 1887, Justice SHANNON, of Randolph county, rendered a judg-
The question which lies at the threshold is whether, upon demurrer, the bill could have been sustained, or ought it not to have been dismissed, as not containing sufficient matter to authorize the interposition of a court of chancery? The well-settled principle is that, where there is a remedy at law. in all respects adequate, a Court of equity will not interpose by injunction or otherwise. There can be no doubt that courts of equity have sometimes restrained by injunction the collection of judgments which had been previously satisfied. See Bowen v. Clark, 46 Ind. 405; Scogin v. Beall, 50 Ga. 88; Craft v. Thompson, 51 N. H. 586. But the more recent and better authorities hold that, when the remedy at law is as complete and adequate as the remedy in equity, the chancery Court will not interfere by injunction. Thus, in his very recent work on the Law of Judgment (1891) Mr. Black says:
“Whether a bill in equity for an injunction is the proper romedy to prevent a judgment-creditor from proceeding to collect anew a judgment which has been in fact satisfied, has been disputed. Some of the cases hold that such an application is meritorious and should be allowed. But others, and we think with better reason, consider that equity ought not to interfere in such a case, inasmuch as the party has a prompt and adequate remedy at law.” Black, Judgm. § 890.
So Mr. High, in his last edition on Injunction (1890, § 123) says : “There is also a noticeable want of harmony in the authorities upon the question of the right to enjoin the
The provision of our Code on this subject is as follows : “A motion to quash an execution may, after reasonable notice to the adverse party, be heard and decided by the Court whose clerk issued the execution, or, if in a Circuit Court, by the judge thereof in vacation; and such judge or Court may, without such notice, make an order staying proceedings on the execution until such motion can be heard and determined. A copy of the order so made must be served upon the officer in whose hands the execution is.” Code, c. 140, s. 17. It will thus be seen that this provision is ample to protect an execution-debtor from the levy of an execution upon a satisfied judgment, and is fully as complete and far less expensive and cumbersome than the resort to a court of chancery. See Cockerell v. Nichols, 8 W. Va. 159; Bank v. Montgomery, 11 W. Va. 169; McCoy v. Allen, 16 W. Va. 783.
For this reason, therefore, it was error in the court below to issue the injunction, and there was no error in the final decree entered the 12th day of January, 1889, to wholly dissolve said injunction.
The Circuit .Court was not content, however, with dissolving the injunction at the costs of the plaintiff, but proceeded to enter a personal decree against him, and to award execution thereon in favor of D. H. Lilly, the assignee of
That case is conclusive of the one we are now considering; and the final decree of the Circuit Court must be reversed for the error indicated, and the appellant will recover his costs in this Court; and, this Court now proceeding to enter such judgment as the court below ought to have rendered, it is adj udged, ordered and decreed that the bill of the complainant be dismissed, but without prejudice against him as to his defence at law against the enforcement of the judgment or execution in the bill and proceedings mentioned; and that the defendants recover of the plaintiff their costs in this behalf in the Circuit Court expended.
REVERSED.