Marks v. Stephens

63 P. 824 | Or. | 1901

Mr. Chief Justice Bean

delivered the opinion.

Injunction by Asher Marks against R. L. Stephens and others to enjoin the sale of personal property belonging to the plaintiff, under an execution issued on a judgment rendered in July, 1891, in favor of John Pearce and others, and against the plaintiff and S. Marks, partners as S. Marks & Co., and one F. C. Buell. The complaint alleges, in substance, that John Pearce, one of the judgment creditors, died in 1891, and S. Marks in 1893; that the plaintiff was appointed administrator of the partnership estate of Marks & Co., and in 1894 a transcript of the judgment referred to was presented to him, as such administrator, for allowance ; that thereafter, on the twentj^-eighth day of February, 1899, an execution was issued thereon, and in March 150 sacks of wheat, the individual property of the plaintiff, were levied upon and advertised for sale, and will be sold thereunder unless the sheriff is restrained; that such execution was wrongful and unlawful for the reasons (1) that it was issued in the name of John Pearce, who- had died long prior to the date thereof; (2) that prior to its issuance Pearce’s administrator had presented the judgment as a claim against the estate of S. Marks & Co., and it had neither been allowed nor disallowed by the administrator thereof; and (3) that the levy on the property of the plaintiff is wrongful and void, because his individual propérty is not liable to seizure and sale under execution issued on a judgment against the firm of S. Marks & Co. A demurrer to the complaint was sustained in the court below, and the plaintiff appeals.

It is elementary law that an injunction will not issue where there is an adequate remedy at law, and therefore equity will not restrain a levy or sale of property under execution on account of mere errors or irregularities in its issuance or proceedings thereunder; for, as said by Mr. Freeman, “courts of equity do not presume to exercise supervisory power over courts of law with a view of correcting the decisions' of legal tribunals. They interfere only in cases of fraud, accident, mistake, surprise, or where some unconscionable use of a leg-al right or title is made or threatened. If an execution is irregularly issued, or is being executed in an irregular, oppressive, or fraudulent manner, the court out of which it issued can usually, on motion, grant appropriate and adequate relief; and, where it can do so, equity will not interpose, except to stay proceedings until the ordinary means of obtaining redress can be pursued at law” : 2 Freeman, Executions (2 ed.), §436. See, also, 8 Enc. PL & Prac. 475; Stafford v. Sibley, 106 Ala. 189 (17 South. 324); Foard v. Alexander, 64 N. C. 69; Gregory v. Ford, 14 Cal. 138 (73 Am. Dec. 639). Now, the only ground assigned for relief is alleged irregularity in the issuance of the execution and the subsequent proceedings thereunder, for which a motion to quash in the court issuing the process would have afforded an adequate and complete remedy. There is no allegation of any fact requiring the interposition of a court of equity, or giving it jurisdiction to interfere by injunction. It is argued that, because the property levied upon is personal, the sale of which would pass the title without right of redemption, equity should interfere by injunction, because such sale might take place before a motion to quash could be heard. But there is no allegation in the complaint upon which to base such a contention, and, if there were, it would not give the court jurisdiction to perpetually enjoin the enforcement of the execution, although, according to some of the authorities, it might stay the proceedings until the motion to quash could be disposed of. It follows from these views that the plaintiff’s remedy was by a motion in the court issuing the process, and not by a proceeding in equity. There was, therefore, no error in sustaining the demurrer, and the decree of the court below will be affirmed. Affirmed.