Smith v. Everly

Mr. Justice Trotter delivered the opinion of the court. Two grounds have been assumed in the argument in support of this assignment of error. 1. That the injunction displaced the lien of the judgments in favor of the appellees, so as to let in the subsequent incumbrance of the appellants’ judgments. 2. That the appellees should have been driven to their remedy against the [185] securities in the forthcoming bond, and been forced to exhaust that fund before they could be permitted to take the fund in the hands of the sheriff. The act of 1824, gives to judgment creditors a lien upon all the property of the debtor, real and personal, from the time of entering up the judgment. This hen can only be defeated or postponed by some act of the creditor, which is deemed fraudulent in law, as against other creditors. Thus, it may be deferred to that of a younger judgment creditor, by negligence in not pursuing it in the mode prescribed by law, or by a contract with the defendant to suspend it to the prejudice of other creditors, as was decided by this court at the present term, in the case of Michie v. The Planters’ Bank. It can never be lost or prejudiced, however, by any improper or fraudulent conduct of the defendant. An injunction does unquestionably suspend the execution of the judgment, and by consequence that of the lien, but it does not destroy either. The execution is merely restrained, but the force and effect of the judgment is not at ail impaired. As soon as this restraint is removed by a dissolution of the injunction, it is again restored to all its capacities and all its .incidents. Execution again issues, of course, and without the necessity of any new order. Rev. Code, p. 95. Such was the opinion of the supreme court in the case of Lynn v. Gridley, Walker’s Rep. 548. In the case of Conway v. Jett, 1 Martin & Yerger’s Rep. 373, the court lays down the same rule. The judge who delivered the opinion of the court, states, that the clerk is authorised, upon the dissolution of an injunction, to enter judgment against all the obligors in the injunction bond. This gives to the creditor a new and more comprehensive lien, and therefore supersedes that on the original judgment. Having in this respect an effect similar to the judgment on a forthcoming bond in this state. The clerk has no such power in this state, and therefore the reason of the rule in Tennessee cannot apply to a case here. The judge in that case remarks, that it would be highly unreasonable to hold that the injunction of itself can defeat the creditor’s lien; and says it can only be lost by the equivalent or higher lien on the new judgment' on the bond. The other cases in Tennessee do not conflict with this principle. The appellees are then entitled to this' money, without regard [186] tto which of the executions the sheriff may have levied it under, for if the lien subsists, it is a lien as well upon the proceeds of the property, as upon the property itself, whilst they are yet in the sheriff’s hands. Beal v. Allen, 18 J. Rep. 363. The appellees are entitled to it, unless they are precluded by the force of the seeond objection which is taken by the appellants. Was the judge below bound to unloose the hold which the law gave them upon this fund, because they had a remedy against the securities? We think not. In the case of Reeves v. Johnson, 7 Halstead’s Rep. 30, the same objection was urged. Reeves had a judgment, which gave him a lien. An attachment was levied upon the property of the debtor, who had absconded; but the levy was subsequent to the date of the judgment. It was a question between the lien of the attachment and that of the judgment. It was said the junior lien ought to be preferred, because Reeves could resort to his remedy against the bail of the defendant. Birt the court said it would be a violation not only of the legal right, which he had to the benefit of his execution, but unjust also to the securities. But besides these considerations, we do not see how this doctrine, if it were true, could be invoked by the appellants. They are as open to the application of the rule as the appellees. Their executions were only set aside. The bond is still in full force, and they have for any thing which appears to this court, as full a remedy against the securities in the forthcoming bonds under this execution, as the appellees can have against those on their bonds. We are clear upon both grounds, that the appellees are entitled to the money. Let the judgment be affirmed.