Kyle v. Frost

Frazer, J. The suit was brought by the appellee to subject to execution certain real estate held by the appellant Louisa Kyle, to satisfy a judgment held by the plaintiff against James W. Kyle, the husband of, Louisa, and Carbon Byfield and James A. Ilambleton, which had been subsequently revived against Kyle and Byfield. It appeared by the complaint that an execution had been issued upon the judgment, and that it had been returned by the sheriff with a return which, at most, can be regarded to the effect that no property of Kyle was found subject to execution. 'There was no averment showing that either By field or Ilambleton were insolvent, nor any other reason why the judgment could not be made out of them by ordinary process of execution, except that Byfield had no property in the county. A demurrer to the complaint was overruled. We are compelled to decide the case without any argument for the appellee. We suppose the suit would formerly have been one in equity. The bill would not lie unless it appeared by its allegations that there was not at law a plain, adequate and complete remedy by which the judgment could be made. Equity would not in such cases entertain the suit, unless its aid was shown to be needed, and the code has not changed this rule. The complaint was therefore bad, it seems to us, and the demurrer to it should-have been sustained. C. E. Walker and A. E. Bassett, for appellants. The husband was, over the wife’s objection, compelled to testify against her. 'We know not how this can be sustained, consistently with our statute upon the subject. The judgment is reversed, with costs, and the cause remanded, with directions to sustain the- demurrer.