Scogin v. Beall

McCay, Judge. As we understand the record in this case, the complainant was entitled to have the defendant enjoined from proceeding to sell under the levy made in December, 1868. That levy was dismissed by the judgment of the Court at August term, 1872, as appears by the minutes of the Court, for want of prosecution of the proceedings then in Court. The plaintiff in ft. fa. was in laches. The effect, and the only effect of the order was to dismiss the levy; with that fell, as a matter of course, the defendant’s affidavit. The plaintiff now proposes to go on with his levy and sell the property levied on. This is in defiance of the judgment. Why make another affidavit of illegality ? If the plaintiff refuses to obey one judgment, may he not another? Has not the defendant exhausted the law? 90 He has got a judgment of the Court dismissing the levy, and yet the plaintiff perseveres. Equity is his only sure remedy. But it is said that Mr. Briscoe, the attorney of the defendant, did, in his name, make a second affidavit, and that the Court dismissed that affidavit. The dismissal of the affidavit for irregularity is not a judgment on the merits — is not res adjudieata of the dispute. It may, under our practice, prevent a second affidavit; and perhaps, for this very reason, equity would interfere. But it is stated in the bill, and is not denied, that Mr. Briscoe was detained, providentially, from Court, and that the proceeding was dismissed during his absence. ' Why does not this give the right to seek an injunction. No opportunity has since occurred to move again, on the ground of his sickness, and the plaintiff will have sold before the next session of the Court. We do not, at present, see that any great harm can come from proceeding under the old levy. It may, however, make a difference, for reasons which the record does not show. It is enough that it is illegal. Judgment reversed.