Steger Lumber Co. v. McSwain

LEVY, J. (after stating the facts as above). The proceeding in the instant case is by in-tendment in the nature of a bill in equity, wherein appellees are, according to the aver-ments, merely seeking to be relieved against a judgment taken at a former term of court, in violation of a previous compromise agreement and settlement by payment, after suit and before judgment, of the debt sued on in such suit. And the evidence conclusively shows that subsequent to the rendition of the judgment complained of, and nearly four months before the institution of the present proceedings, the judgment had been fully enforced and paid by proceeds of execution sale, and formal entry of satisfaction of the judgment had been duly registered. And there does not' appear any evidence that the plaintiff in the judgment was endeavoring or threatening to make further attempt at enforcing such satisfied judgment. And it appears that the plaintiff in execution was neither the purchaser of the property sold under execution, nor in possession of or claiming the same. Since satisfaction under execution, and formal entry thereof, of the judgment had the legal effect to extinguish and wipe out the judgment debt and cancel the judgment, it could not be legally further executed or enforced. As remarked in the similar case of Fluegelman v. Armstrong, 59 Mise. Rep. at page 508, 110 N. Y. Supp. at page 969: “It is perfectly clear that at the time the motion was made to open the defendant’s default and to vacate and set aside the judgment there was no judgment in existence, and therefore nothing for the court to exercise its power upon. The judgment had been extinguished.” Consequently there manifestly appears adequate relief against injury by reason of the judgment, which was legally vacated and extinguished by full satisfaction, and a want of any need or ground for equitable assistance. Equity could give no further assistance and grant no more relief against further injury from the judgment than already adequately existed to appellees. Equity action, under common principle, is not granted where there is no real injury to be apprehended. Watrous v. Rodgers, 16 Tex. 411; Whitman v. Willis, 51 Tex. 421. And equity action is given, in the character of cases such as pleaded, to afford relief either by preventing the deprivation of property or by restoration of the property so wrongfully and unjustly taken. For instance, as a ground of relief courts of equity interpose and prevent the enforcement or further collection of a judgment where the demand upon which it is based has been fully satisfied prior to its entry (Gates v. Steele, 58 Conn. 316, 20 Atl. 474, 18 Am. St. Rep. 268; Greenwaldt v. May, 127 Ind. 511, 27 N. E. 158, 22 Am. St. Rep. 660; Hibbard v. Eastman, 47 N. H. 507, 93 Am. Dec.467), and make restoration of the property wrongfully taken, where circumstances permit (Cook v. Sparks, 47 Tex. 28), and interpose, in circumstances' where the judgment is not in fact satisfied and should be vacated, to prevent its being further enforced (Heath v. Garrett, 50 Tex. 264; Hirshfeld v. Brown, 30 S. W. 962; American Surety Co. v. Bernstein, 101 Tex. 189, 105 S. W. 990). But where, as here alleged and proven, the judgment has since rendition been satisfied by process of execution, the remedy for such wrongful taking of the property is an action for damages. Cleveland v. Tufts, 69 Tex. *294 580, 7 S. W. 72; Bant of Mertens v. Steffens, 51 Tex. Civ. App. 211, 111 S. W. 782. See, also, Chambliss v. Hass, 125 Iowa, 484, 101 N. W. 153, 68 L. R. A. 126, 3 Ann. Cas. p. 16, showing that involuntary payment of the wrongful judgment does not operate as a waiver of right to restitution or redress by proper action therefor. Therefore, in view of the facts stated, it is believed that it should be held, as insisted by appellant under proper assignment of error, that there is failure to prove any need or ground for equitable relief against injury by reason of the judgment. The case of Patterson v. Keeney, 165 Cal. 465, 132 Pac. 1043, Ann. Cas. 1914D, 232, relied on. by appellees, is purely a statutory proceeding to set aside a default judgment, which does not obtain so extendedly in this state. It may be remarked, though, that quite a different case would have been presented here if the petition had, besides attacking the judgment as it did, gone further and sought damages as for conversion or wrongful taking of property under execution. And we do not by the remark intend to agree, as urged by appellees, that such character of suit must necessarily be brought in the court where the judgment was originally rendered. It is concluded that the court erred in not granting the motion for new trial, as complained of by appellant, and the judgment is reversed, and the cause remanded. Footnotes [1] (fessFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes