| Ill. | Apr 15, 1859
The object of the bill in this case, was to correct a mistake of a ministerial officer, not of contracting parties, which they may have inadvertently made.
A demurrer was interposed and on argument the bill was dismissed and an appeal taken, and now upon the appeal, the appellant says there was no formal decision upon the demurrer— it was neither overruled nor sustained. Of what consequence is that ? Did the complainant join in demurrer ? This was his duty, and if he omitted that, and chose to argue the demurrer, it will be intended the issue of law was made up, and a decree, dismissing the bill is a decision upon the demurrer, and it is not error, where a bill has no equity upon its face, to dismiss it on demurrer. Having no equity, it is incapable of amendment. The rule is different when a good case is presented by the bill though defectively stated. In such cases, the bill is retained for proper amendments.
But it is insisted there is equity in the bill, and complainant was entitled to the relief for which he prayed. The argument used in support of this idea, shows if there be equity in the bill, still a court of equity cannot interfere in the case. The argument is, a court on motion would grant, or even compel the amendment to the return and certificate where the interests of third persons are concerned. If this be so, then the complainant has mistaken his remedy. His relief is at law, by motion in the court from which the fi. fa. issues, after notice to the sheriff and to the parties in interest, and where an adequate remedy exists at law, courts of equity do not interfere, and for this reason, the bill was properly dismissed. The case referred to by complainant was a case like this where the remedy was afforded at law. The sheriff, under a fi.fa. had sold three parcels of land belonging to the defendant to one of the plaintiffs, but in his certificate of sale, had, by mistake, omitted one of the parcels. The court, on motion, in behalf of the purchaser, ordered the sheriff to amend his certificate by inserting therein that he had sold the parcel omitted. Smith & Reilay v. Hudson, 1 Cowen, 430.
There is no such mistake here, as a court of equity can be called upon to reform. An adequate remedy exists at law, and to a court of law, must the complainant resort. Hamilton v. Shrewsbury, 4 Randolph, 427; Cooper v. Butterfield, 4 Ind. 423" date_filed="1853-12-02" court="Ind." case_name="Cooper v. Butterfield">4 Ind. 423. Courts of equity have no jurisdiction in such cases.
The judgment of the court below dismissing the bill, is affirmed.
Judgment affirmed.