Beall v. Osbourn

GrasoN, J., delivered the opinion of the Court. This case comes before this Court upon an appeal from a decree of the Circuit Court for Prince George’s county, sitting in equity, dissolving an injunction and dismissing the bill of complaint. It was contended by the counsel of the appellant that there was error in the decree; first, because at the time of its passage, a suit in equity, was pending in the Circuit Court for Prince George’s county, as a Court of Equity, for a sale of [10] the real estate óf Thomas E. Bowie, for the payment of his débts, and that an injunction had been issued in that case enjoining his creditors from proceeding against him at law, and that the injunction was still in force at the time the writ of fieri faeias was issued Upon the judgment of the appellees, and that, inasmuch as Bowie’s creditors were thus enjoined from proceeding against him at law, it followed that the ap-'pellees could not proceed, upon their judgment and execution against the appellant, who is the executor of Bowie’s surety; and secondly, because even if they could thus proceed, during the existence of that injunction, that the writ of fieri facias should have issued against the property of the appellant’s testator and not against that of the appellant; and even had it properly and legally issued against the property of the latter, that it ought to have been against his goods and chattels, and not against his land. 1st. It appears from the record of the proceedings in the case of Bowie’s creditors against him, and which was submitted to the consideration of this Court by an agreement of the counsel of the parties to this cause, that a decree has been passed for the sale of Thomas F. Bowie’s real estate, for the payment of his debts; that his real estate has been sold under that decree, and the sale reported to, and ratified by the Circuit Court for Prince George’s county, sitting in equity. The injunction in that cause, therefore, is no longer in force, and the first ground of objection to the validity of the execution of the appellees no longer exists. But even if such injunction were now in force, we concur in the opinion of the Court below, that it would not prevent the appellees from executing their judgment against the representative of Bowie’s surety. 2d. The writ of fieri faeias, which was issued upon the appellees’ judgment, is not contained in the record and in its absence this Court must presume that the clerk issued it in proper form and in accordance with the requirements of the law. The judgments of the appellees, set out in the record are absolute judgments against the appellant and conclusive [11] of the existence of the debt and the sufficiency of the assets to pay it. Iglehart vs. The State, 2 G. & J., 245. And in view of these facts, taken in connection with the first section of the eighty-third Article of the Code, we are of opinion that a fieri facias, upon a judgment against an administrator or executor, can be issued and levied upon his lands as well as upon his goods and chattels. (Decided 7th January, 1869.) In accordance with the views above expressed this Court must affirm the decree of the Court below. Decree affirmed.