Majority
p. 167Christie and wife vs. Bogardus and others.
Headnote
An ex parte injunction ought not to be granted, to restrain a party from proceeding' under a judgment and execution at law, which judgment is alleged to have been paid; where the complainant does not know, and cannot state as a fact within his knowledge, that the judgment has been paid, or that the defendant claims to sell, under the execution, for more than is justly due.The statute is imperative, that no injunction shall issue to stay proceedings at law in any personal action, after judgment, unless a sum of money equal to the judgment and costs is paid into court, and a bond is also given for the payment of the costs and damages which may be awarded to the defendant in the suit in the court of chancery.
But the chancellor or vice chancellor before whom the bill is filed, has the power to dispense with the actual deposit of the amount of the judgment and costs, upon sufficient cause shown; and may take a bond with sureties for the payment of the judgment.
Even in that case, however, the complainant must give another bond for the payment of the-damages and costs which may be awarded in the court of chancery. Or, the penalty and condition of the first mentioned bond must be enlarged, so as to conform to that requirement of the statute also.
In no case can an ex parte injunction be issued, to stay the plaintiff in a judgment from proceeding against the judgment debtor or his property, without an actual
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deposit of the amount claimed to be due, and giving a bond with sureties for damages and costs; or the giving of proper security for the payment of the judgment, and also for the damages and costs which may be awarded in the court of chancery
Where the whole or a part of a judgment has been paid, and the plaintiff therein is proceeding to collect the whole judgment, or a part thereof which has been paid, the proper remedy of the defendant is by a summary application to the court in which the judgment was recovered. Or, if it is proper for him to come into the court of chancery, to stay, the proceedings upon the judgment, he should state the fact of such payment, in his bill, and swear to it; and give notice of his application, for an injunction, to the adverse party. •
Upon such an application, to authorize the court to dispense with any part of the deposit, or the giving of security in lieu thereof, such court must be satisfied that the part of the amount of the original judgment as to which the security or deposit is to he dispensed with, is actually paid and satisfied. It will not be sufficient if it is merely dovMful whether the whole amount claimed is justly due upon the judgment..
The complainant, when he seeks to obtain an injunction to stay the collection of a judgment, without a deposit or security, must state the times, circumstances, and amount of each payment; so as to enable the court, by mere computation, to fix ■ the amount of the deposit, or of the bond, and to enable the defendant to controvert the fact of such payments having been made.
A bond for the damages and costs, which may bo awarded against the complainant, can in no case he dispensed with, upon the granting of a preliminary injunction to stay proceedings at law upon a judgment; although such injunction is granted upon a special application to the court, and upon the hearing of the defendant.
This was an application, on the part of the defendants, to set aside an injunction, which had been issued in this cause, for irregularity ; or for such other relief as they were entitled to in the premises. The motion was founded upon the bill of complaint, and affidavits, which showed the following state of facts, In 1840 the complainant J. D. Christie, and S. T. Todd, who was not a party to this suit, were indebted to the Bank of Ithaca about $8500; for which debt all the defendants in this suit were hoi den as their sureties. Christie was alsoindebted to the bank in the further sum of $1340; for which two of.the defendants, Labar and Love, were liable as his sureties. He was also indebted to A. Dana about $800, for which all the defendants were holden as sureties. Christie and Todd, together with the defendants, gave a bond and warrant to the hank, for the amount of the first of "these debts, on the 8th of April, 1840. On the same day Christie, and. the defendants Labar and Love, gave a
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separate bond and warrant to the bank, for the debt for which they were alone liable. And at the same time Christie and all the defendants gave the bond and warrant to Dana, for the debt due to him. On the same day, Christie, gave his bond and warrant to the defendants, for the aggregate amount of these three debts; amounting in the whole to the sum of $10,691,18. Judgments were entered, in the supreme court, upon those bonds and warrants respectively, on the 14th of the same month. And on the 25th of May, 1845, an execution was issued upon the judgment in favor of the defendants in this suit, against Christie, to the sheriff of Tompkins county; with directions to levy the amount of the debt and costs.
At the time of the giving of these judgments, the defendants Bogardus, Labar and Love, held certain securities by way of mortgage, from Christie, to secure them in part for their liabilities for him. And some other interests in real estate were subsequently conveyed to them, by Christie, which the hill alleged were received as security for the same debt. In May, 1841, the complainant Christie, with two other persons as his sureties, who were not made parties to this suit, gave another judgment to the Bank of Ithaca ; as a further security for the debts due to it. The bill, after slating these facts, and that the defendants had token possession of some of the lands conveyed to them byway of mortgage, alleged, upon the belief of the complainants, that the debts to the bank and to Dana had been paid by the defendants and by Christie, chiefly by them out of his effects, and otherwise, as his sureties; but that the several judgments were still unsatisfied of record. It was also stated that the defendants had recently directed the sheriff to proceed upon the execution, issued on their judgment in 1840, and to sell certain lands belonging to the complainant J. D. Christie, and otherlands belonging to his wife, in which he had a life interest by the marriage; and that the sheriff had advertised such lauds íbr sale. The complainants also stated that they feared the defendants would cause executions to be issued upon the several judgments, in favor of the bank, and of Dana." The bill also charged that the defendants had received, from time to time, large sums of money
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toward;; and on account of their liabilities for the complainant,, and in property and the proceeds of property, and in dioses in action assigned to them by Christie, and in rents and profits of real estate conveyed to them by way of mortgage, and in the proceeds of property sold under execution; and in other modes which the complainants did not deem it necessary for them to specify. The complainants thereupon insisted and charged the truth to be, according to-their judgment and belief, that the liabilities of the defendants were fully paid off and satisfied. They therefore prayed that an account might be taken of the liabilities of the defendants, and of the amounts which they had received, or which they were equitably chargeable with, towards the payment and extinguishment of such liabilities; so that the complainants might know the exact balance due from Christie, if any; he offering to pay such balance as might be found duo upon such accounting; and that the mortgages and other securities might be delivered up and cancelled, and the several judgments satisfied of record.
Upon this bill the complainant Christie applied ,to one of the vice chancellors, acting as an injunction master, and without the deposit of any money or giving any security except his own bond, in the penalty of $500, obtained an injunction; restraining the defendants from selling under the execution, upon their judgment, or from taking any proceedings whatever under any execution upon either of the judgments mentioned in the bill.
G. F. Comstock, for the complainants.
Ben Johnson, for the defendants.
It is evident, from this bill, that the complainants did not know, and could not state as a fact within their own knowledge, that the judgment of the de fendants was fully paid; or that the defendants were in fact claiming to sell, under their execution, for any thing more than was justly due. An ex parte injunction, therefore, ought not to have been granted in this case; even if there had been
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no statutory provision regulating the granting of injunctions to stay proceedings at law after judgment. But a notice of the application should have been given, so as to afford the defendants an opportunity to be heard. (Campbell v. Morrison, 7 Paige's Rep. 157.) The injunction in the present case then should be dissolved with costs, upon the matter of the bill only, even if the vice chancellor had been authorized to allow an injunction to stay the proceedings in a suit at law after judgment, without the payment of the money into court.
I am also satisfied that, in the present case, the injunction Avas irregularly issued, and that the vice chancellor had no authority to allow the injunction Avithout requiring the amount claimed ¿y the defendants as due upon their judgment to be paid into court; and also taking a bond, Avith sureties, as required by law. The statute is imperative, that no injunction shall issue to stay proceedings at law in any personal action after judgment, unless a sum of money equal to the amount of the judgment and costs is paid into court, and a bond also given for the payment of the costs and damages which may be awarded to the defendant, in the suit in this court. (2 R. S. 189, § 147.) It is true the chancellor or vice chancellor, before whom the bill is filed, has power to dispense with the actual deposit of the money, upon any sufficient cause shown to take the case out of the general rule: and to take a bond Avith sureties, for the payment of the judgment. But even in that case the complainant must give another bond, for the payment of the damages and costs which may be awarded in this court; or the penalty and condition of the first mentioned bond must be enlarged, so as to conform to that requirement of the statute also. In no case, therefore, can an ex parte injunction be issued, to stay the plaintiff in a judgment from proceeding against the judgment debtor, or his property which is liable to execution, without an actual deposit of the amount claimed to be due, and giving the bond with sureties for damages and costs; or the giving of proper security for the payment of the judgment, and also for the damages and costs which may be awarded hero.
The defendant in the judgment is not Avithout remedy, hoAV
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ever, where the whole or a' part of the judgment has been actually paid, if the plaintiff still insists upon proceeding to collect the whole judgment, or any part thereof which has been thus paid. The proper course, in an ordinary case, is to make a summary application to the court in which the judgment was recovered, for relief. Or, if the circumstances are such as to render it proper for the defendant to come, into this court, to stay the proceedings upon the judgment, he should state the fact of such payment in his bill, and swear to it, and give notice of his application to the adverse party. Then this court, after hearing the parties upon that- application, will he in a situation to decide whether the whole amount of the judgment, or only a part of it,, should be paid into court, in order to comply with the spirit and intent of the statute on this subject; or for what amount a bond with sureties should be given, if the circumstances are such as to render it proper for the court to dispense with the actual payment of the money-. But. upon such a hearing the court would not be authorized to grant an injunction, to stay the proceedings upon the judgment, without an actual deposit, of the money, or the giving of security to the full amount of the judgment, and interest thereon, or the amount claimed to be due and unpaid, merely because it -was rendered doubtful whether the whole amount so claimed was justly due. To dispense with any part of the deposit, or the giving of security in lieu thereof, the court must be satisfied, beyond any reasonable doubt, that the part of the amount of the original judgment, as to which neither security or deposit is required, is actually paid and satisfied. And for that- purpose it is not sufficient, for the complainant to state generally, as in this case, that the judgment has been paid by ' his money and property, or by sales under execution. But tha party who seeks to be excused from depositing the money, or giving security, for the whole amount claimed by the adverse party to be due, must state the time, circumstances and amount of each payment, so as to enable the court, by mere computation, to fix the amount of the deposit, dr of the bond; and to give the party who is sought to be enjoined an opportunity to meet and deny the fact of such payments, if they have not been actually
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made as charged in the bill. And a bond for the damages and costs, which may be awarded against the complainant here, can in no case be dispensed with, upon the granting of a preliminary injunction to stay proceedings at law Upon a judgment; although such injunction is granted upon a special application to the court, and upon the hearing of the party against whom the injunction is sought.
As the injunction which was issued in this case was irregularly as well as erroneously granted, it must be set aside with costs.