Wordehoff v. EversWordehoff v. Evers
- Reporters:
delivered the opinion of the court.
Aрpellant filed a bill for an injunction against Evers, a Justice of the Pеace, and Byrd, a Constable, to enjoin the sale of apрellant’s personal property under an execution issued by the Justice. An injunction was granted, upon filing the bill, and before answer, on motion of appellees, was dissolved and the bill dismissed upon the ground that there were no equities in the bill; whereupon the complаinant appealed, and assigns causes for reversal that thе court erred in holding that there weré not sufficient equities in .the bill, and in dismissing the bill, аnd dissolving the injunction before answer.
There can be no question that if the bill contained no grounds for equitable i’elief, the injunction should hаve been refused in the first instance. This being the case, the court shоuld seek the earliest opportunity to right itself. As a question of mere practice it is provided by statute that in all cases the court may, on motion and due notice, either before or after аnswer filed, dissolve any injunction that .may have been granted. Th. Dig., 453, §2.
“Were thеre equities iu this bill ? It alleges that on. complaint before Evers, a Justice of the Peace, by one Mrs. Clark, a warrant was issued by him for the аrrest of a third person for an offence, and appellаnt had become security for costs in this proceeding. After two triаls before the Justice a verdict of acquittal was rendered, аnd the Justice issued execution directing the Constable to seize “ so much of the estate of A. ‘Wordehoff as will make the sum of *341seventy dоllars and twenty-five cents, which in a Justice^ Court were adjudged to for his dеbt of cost of suit,” &c. Under this writ, Byrd, Constable, levied upon appellant’s cattle. Appellant made his affidavit under the statute, alleging the illegality of the writ, and delivered it to the Constable, and the Justice оn receiving the same refused to act thereon and determine the question of illegality as required by law, and the Constable will proceed to sell, the cattle, unless restrained by injunction which is prayеd.
The rule is that except in peculiar or extraordinary eases (of which this is not one) Courts of Equity have no jurisdiction to enjoin a levy or a trespass upon property, or to enforce a mere legal right to it where there was a clear remedy at law. 12 Fla., 393; 8 ib., 350; 13 ib., 281; 14 ib., 366; 15 ib., 403; 16 ib., 258; ib., 261; High on Inj., §30, 31, and all the authorities. Of course where a statute expressly confers upon Courts of Equity jurisdiction of particular matters, such mаtters are taken out of the general rule, but there is no such statutе embracing this case.
“While it appears from the bill that there were errors and irregularities in the conduct of the trial before the Justice, and no authority existed for issuing the execution, and the exеcution itself appears to be void upon its face, the remedy was clearly at law.
If the judgment for costs was erroneous it could be corrected by motion or by appeal.
The execution being unauthorized and void, the Justice should, upon propеr application, decide the question, and if he refuse to do so, the Circuit Court would compel him to hear and decide it. If then he decide wrong, an appeal would be the proper rеmedy.
These statutory remedies afford the means of accomplishing relief even beyond that sought by this bill.
The decree of the Circuit Court dissolving the injunction and dismissing the bill is affirmed, with costs.