Hume v. Rice

Mr. Justice McCamant

delivered the opinion of the court.

1, 2. The restitution bond was filed before the expiration of the five-day period allowed by the statute for exceptions to the sufficiency of Hume’s undertaking on appeal. It was therefore premature: Hansen v. Robbins, 80 Or. 659 (157 Pac. 1112, 158 Pac. 403). It is admitted that Rice acquired no rights by the filing of this bond. All proceedings had under the execution after Hume had filed his supersedeas bond, May 5, 1915, were therefore wrongful. The only levy which was made under the writ was the garnishment of the Gervais State Bank. The damages claimed by Hume are predicated chiefly on this levy. The burden devolved upon him to allege.and prove that the levy was made subsequent to May 5th and the record is silent on the subject.

3. The record shows that Hume was subjected to expense because of the refusal of Rice to release the garnishment after Hume had appealed and furnished a supersedeas bond, but the amount of this expense is not ascertainable from the testimony. There is no segregation of the damage and expense growing out of the original levy from that chargeable to the refusal of Rice to release the garnishment when requested so to do.

4, 5. There is a further reason why the decree in this case cannot he upheld. While the jurisdiction of equity to restrain the enforcement of judgments at law exists, it is said in 1 High on Injunctions (4 ed.), Section 113, that:

“The jurisdiction, though well established^ is not regarded as a favorite one with courts of equity. _ A bill seeking relief of this nature is scrutinized with great jealousy, and the grounds on which the interference will be allowed are confessedly narrow.”

In Wells, Fargo & Co. v. Wall, 1 Or. 295, 296, Mr. Justice Stratton says:

“Nor will this court interfere with judgments at law and take jurisdiction, unless it shall appear that the party has used due diligence, exhausted every means, and failed through ignorance of some fact; or was prevented from availing himself of his defense by fraud, accident, or by the act of the opposite party, unmixed with negligence or fault on his paid.”

In Marks v. Stephens, 38 Or. 65, 67 (63 Pac. 824, 84 Am. St. Rep. 750), it is said by Mr. Chief Justice Bean :

“If an execution is regularly issued, or is being executed in an irregular, oppressive, or fraudulent manner, the court out of which it issued can usually, on motion, grant appropriate and adequate relief; and, where it can do so, equity will not interpose, except to stay proceedings until the ordinary means of obtaining redress can be pursued at law. * # There is no allegation of any fact requiring the interposition of a court of equity, or giving it jurisdiction to interfere by injunction. It is argued that, because the property levied upon is personal, the sale of which would pass the title without right of redemption, equity should interfere by injunction, because such sale might take place before a motion to quash could be heard. But there is no allegation in the complaint upon which to base such a contention, and, if there were, it would not give the court jurisdiction to perpetually enjoin the enforcement of the execution, although, according to some of the authorities, it might stay the proceedings until the motion to quash could be disposed of.”

The complaint in the instant case, like that in the case last cited, fails to allege any excuse for failure to seek a legal remedy. It is not alleged, for example, that the docket of the court out of which the execution issued was in such condition as to prevent an immediate hearing of the motion to recall the writ. The inference is strong that a timely application to that court would have been effectual; it is certain that when the motion to recall the writ was heard, it was promptly allowed. This remedy was plainer than the one pursued; it was equally adequate and in the absence of allegations and proof to the contrary we must' assume that it was equally speedy. It follows that the case was not one for equitable cognizance and the bill should be dismissed without prejudice to Hume’s right to seek a remedy at law.

We are the more ready to announce this conclusion because the injunction was issued by the Circuit Court for Marion County, enjoining the enforcement of a writ issuing out of the Circuit Court for Multnomah County. The principles of comity forbid the issuance of such an injunction without a showing of great urgency. In every such case the complaint should allege a satisfactory reason for failing to apply for relief to the court out of which the execution issues.

The conduct of Bice’s attorney in refusing to recall the writ when requested so to do was censurable, and we shall therefore not disturb the decree of the lower court on the subject of costs. Neither party will recover costs in this court.

The decree is reversed.

Reversed. Rehearing. Denied.

Mr. Chiee Justice McBride, Mr. Justice Moore and Mr. Justice Harris concur.