Lockwood v. Kitteringham

Milltsr, Ch. J. Section 3396 of the Code provides that, “when proceedings in a civil action, or on a judgment or final order, are sought to be enjoined, the suit must be brought in the county and court in which such action is pending, or the judgment or order was obtained.” The petition shows that the judgment, upon which the execution sought to be enjoined was issued, was made a special lien upon the property in the petition described, and the exe [259] cution was issued for tlie purpose of enforcing this lien by a sale of the property. The record does not expressly state that the execution was a special one, but since an execution to enforce a judgment establishing a mechanic’s lien should be special, it will, unless the contrary appears, be presumed that it was so in this case. The injunction is sought for the purpose of restraining the enforcement of the judgment by special execution. In the language of the section of the Code above quoted, it is sought .to enjoin proceedings on a judgment, and should, therefore, have been commenced in the Circuit Court where the judgment was rendered. This is not like a case where it is sought to enjoin the .sale of property under a general execution, where it is alleged that the property does not belong to the defendant in execution but to a third person who seeks the injunction. In such case it is not sought to enjoin proceedings under the execution, or the proceedings on the judgment. The officer having the writ is left free and unobstructed in proceeding to carry out the mandate of his writ, by making the moneys therein specified from the property of the defendant in the execution. The injunction is sought only to prevent the officer from committing a wrong, under color of his writ, by seizing property not belonging to the defendant in execution, but where it is sought to enjoin the sale of property levied upon under a special execution, it then comes within the provisions of the statute which require that the injunction must be sought in the county and court where the judgment was rendered, for the injunction in such case, when issued, has the effect to stay proceedings on the judgment. The mandate of the injunction restrains the officer from doing that which the execution in his hands commands him to do. The ruling of the court below was right and its judgment will be Affirmed.