Foster v. Goss

LUSK, J. This is a companion case to Ulrich v. Lincoln Realty Company, this day decided. It involves the same parties and the same question. Subsequent to the entry by the court below of the order quashing the writ of execution in the Ulrich case, the plaintiff Foster, the judgment creditor who caused the writ to be issued in that case, filed a complaint in the circuit court in which the facts leading up to the issuance of the writ are recited, and a decree sought declaring plaintiff’s deficiency judgments to be a lien against the real property in question, and ordering that a writ of execution issue and that the property be sold to satisfy such judgments. The defendants demurred to the complaint, and the court sustained the demurrer and entered an order of dismissal, from which this appeal is taken. We think the suit was properly dismissed, though not for the reasons given by the learned circuit judge, who based his ruling upon a construction of the redemption statute contrary to that which we have announced in the Ulrich case. The complaint, according to the statement of counsel for plaintiff on the argument, was filed under the declaratory judgment statute, though it goes beyond a mere attempt to secure a declaration of rights and asks for equitable relief by way of the imposition of a lien on real property and an order of sale on execution for the satisfaction of such lien. So the declaratory feature may be disregarded and the complaint treated as an ordinary bill in equity. *407 As such, it does not state a cause of suit for equitable relief because the questions involved are purely legal, are governed altogether by statute, and could be, and have now been, fully and finally determined in the proceeding to recall the execution in Ulrich v. Lincoln Realty Company. The decree is affirmed with costs to the defendants.