Shackelford v. Apperson , 6 Va. 451 ( 1849 )

Baldwin, J.

delivered the opinion of the Court.

It is only by force of our statute law that process of execution can be sued out upon decrees in chancery. Our act concerning executions, 1 Rev. Code, p. 545, § 55, authorizes such process to be issued by the clerk, on the application of a party who has obtained a final decree for lands, slaves, money, or things of a specific nature, in like manner as upon a final judgment at law. In regard to interlocutory decrees, the clerk has no such authority, without the order of the Court, or of the Judge thereof in vacation, as provided by the 56th section of the same act. In the present case, the decree was wholly interlocutory, and liable in respect to the money directed to be paid, to modification, by the sale of the land provided for in the event of non-payment. Circumstances, it is true, may exist to warrant the exercise of the discretionary power of the Court or Judge to allow process of execution upon such an interlocutory decree. But it is a matter for the sound discretion of the Court or Judge, not the arbitrary will of the party, which might be exerted with extreme harshness and oppression. The execution having issued irregularly and unlawfully, it was competent for the Court to quash it in term time, or for the Judge in vacation to restrain proceedings upon it by an injunction order. No circumstances appear which would have rendered the awarding of execution upon the decree proper, if application had been made to the Court or Judge for that purpose; and none could justify the abuse of suing it out without authority.

The Court is therefore of opinion, that the order of the Circuit court dissolving the injunction which had been granted to the appellant, and dismissing his bill, is erroneous; and it is decreed and ordered, that the same be reversed and annulled, with costs tq the appellant. And it is further ordered and decreed, that the said bill and injunction be reinstated; and the cause is remanded to the Circuit court, to be proceeded in to a final decree in conformity with the principles above declared.