Christie v. Bogardus

The Chancellor. 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 [171] 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 [172] 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 [173] 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.