1 Kan. App. 501 | Kan. Ct. App. | 1895
The opinion of the court was delivered by
On January 13, 1891, James Worden filed his petition with the clerk of the district court of Reno county, Kansas, alleging that on the 18th day of March, 1890, J. 0. Holloway obtained a judgment in said court against James Worden, Sidney E. Peck, and Swift & Co., a corporation, for the sum of $840.62 with interest at 6 per cent, from the date of judgment, and costs taxed at $88.40, and that thereafter the said Holloway assigned said judgment to his co-defendants, Davidson & Williams, and in April, 1890, said judgment was fully paid and satisfied, the said assignees receiving the full amount thereof, except the amount of costs. Afterward, on the 1st day of December, 1890, an execution was issued from the district court of said county, and he attaches a copy of said execution to his petition. He further avers that he tendered to the sheriff the full amount of costs and accruing costs in said cause, but the sheriff refused to accept and receive the costs and make return of the execution, but levied the same upon Worden’s real estate situated in Reno county, Kansas, for the purpose of collecting the full amount of judgment, interest and costs as not satisfied under the execution. Worden also offers to pay all costs which he has not heretofore paid in said cause, and asks that the sheriff be required to accept the same and return the execution ; that he be enjoined from proceeding under said execution to sell the property of this plaintiff. The petition contains three several causes of action, setting up substantially the same state of facts in each cause
The principal contention in this case is as to whether the judgment of J. C. Holloway against James Worden, Sidney E. Peck, and Swift & Co., a corporation,
It is further contended that if Swift & Co. had actually furnished the money to pay the judgment, and had it assigned to Edward F. Swift, before Worden could maintain an action for an injunction he would have to tender at least óne-half of the judgment to Swift & Co. There is not entire harmony in the authorities upon the question of the right to interpose by way of injunction to enjoin the enforcement of a judgment which has been fully paid. In an early case, decided in 1814, Chancellor Kent, in speaking on the jurisdiction of the court of chancery to enjoin the enforcement of a judgment by execution and sale of property therefor, says : “The injunction can only be granted upon one of these two grounds, first, that the plaintiff has already fully paid and satisfied the execution.” (Lansing v. Eddy, 1 Johns. Ch. 49.) The better-reasoned cases all seem to hold that where the judgment has been fully paid and satisfied, equity will restrain the levy of execution and sale of property thereon. Where the judgment has been fully paid, it -would be a great injustice to the party to allow' the issue of execution thereon and the sale of his property thereunder, and remit him to his redress by an action at law' for his damages. The plaintiff's, petition alleges the rendition of judgment by the district court of Reno county, in March, 1891, the assignment of the judgment by Holloway to Davidson & Williams, and the payment of the judgment in full to the assignees thereof,'except the costs, and the tender of the full amount of costs and accrued costs. The answer
It is contended by the defendants in their brief that if Swift & Co. had actually furnished the money to pay the judgment, and had it assigned to Edward F. Swift, before Worden could maintain his action he would have to tender at least one-hálf of the judgment, and there is no such tender. The claim is that
It is insisted by counsel for the defendants that “the allegation of the answer that, as between plaintiff and Swift & Co., plaintiff is primarily liable should be taken as true. If so, plaintiff could not maintain his action until he tenders the whole judgment and cost.” We do not so interpret the pleadings. The liability of Worden is a disputed fact to be determined on'the final trial of the case. The court, on a final trial of the issues, may determine the liability of Worden as to whether he is primarily liable to Swift & Co., and if it so find, may deny the injunction, or modify it, as justice and equity may demand. The petition of the plaintiff alleges that the judgment was fully paid and satisfied, and the answer alleges that the payment was made by Edward F. Swift to the assignees of the judgment, and the same
The judgment of the district court is reversed and the case remanded, with direction to overrule said demurrer to the reply of the plaintiff, and proceed with said cause according to the opinion herein expressed.