Hall v. Lyon

Waenee, C. J. The error complained of in this case, is. the sustaining of the demurrer to the complainants’ bill, and dismissing the same upon the ground, that the complainants had an adequate and complete-remedy at-law. The executions which were levied upon the land, and under which the land was sold by the sheriff, were regular upon the face thereof. By the 3576th section of the Code, the. clerks of the several Courts in which judgments shall be obtained, are authorized to issue executions directed to all and singular the sheriffs of this State and their lawful deputies, which may be levied on all the estate, both real and personal of the defendant. The record discloses the fact, that sundry judgments were obtained against Ware, the defendant, for the principal debt due, as well as for the interest, and costs of suit. The clerk of the Court, instead of issuing executions in pursuance of the judgments, erroneously issued executions in the name of the officers of Court, against the defendant for the costs only, which were directed to the sheriff, requiring him to make the money apparently due thereon by levy and sale of the defendant’s property. The argument for the defendant in error is, that the sheriff in levying these executions, is a trespasser and liable to be sued at law for damages, and that a court of equity will not interfere by injunction, to restrain a party from committing a mere act of trespass upon the property of another. In support of this proposition, the cases of Anthony vs. Brooks, 5th Geo. Rep., 576; Bethune vs. Wilkins and Rutherford 8th Geo. Rep., 118; Sullivan and another vs. Hearndon, 11th Geo. Rep., 294, are cited. The question 639 here is, was the sheriff a mere trespasser in levying these executions under the facts presented by this record. Although these executions were erroneously issued by the clerk, the same were .regular upon the face thereof, and the sheriff was bound to execute the same until set aside by the judgment of a Court of .competent jurisdiction. It may be stated, as a general legal proposition in regard to the liability of officers executing process, that when the process is void' upon the face of it, it will never afford- protection to the officer executing it; but he is liable to an action as well as the' party obtaining it; but when the process is apparently good and regular on the face of it, and can be avoided only by some extrinsic matter, then, the officer is excusable, and the party only liable, for the officer can judge only from what is apparent on the face of the process. That the executions issued by the clerk in favor of the officers of Court against the' defendant for costs, were erroneously issued there can be no doubt, for the simple reason that there is no judgment of the Court which would authorize them to be issued in that form, and they would be set aside upon application to the Court for that purpose. But the executions have not been set aside by the judgdment of the Court, so far as the record informs us, and until that is done, the sheriff cannot be considered as a trespasser, even bj relation. 1st Chitty’s Pleading, 187; 7th Comyns’ Dig., 522; Parsons vs. Lloyd; 2nd Wm. Blackstone’s Rep., 845; Chapman vs. Dyett, 11th, Wendell’s Rep., 31. The result of our judgment therefore is, that inasmuch as the complainants have not-an adequate remedy at law against the sheriff as a trespasser for dámages, and the complainants not "being parties to said executions so as to make an affidavit of illegality thereto, the alleged purchaser of the land being insolvent, such a case is made by the record as entitles the complainants to an injunction, and that the Court below erred in sustaining the demurrer,- and dismissing their bill. Let'the judgment of the Court below be reversed.