Opinion
(December Term, 1859.)
Where it was alleged by the defendant, in an execution, that satisfaction had been made on a former execution issued on the same judgment, it was Held that a bill for an injunction to restrain the second execution was not the proper remedy, for that, at law, a motion on notice, in the nature of a writ of audita querela to call in the execution and have satisfaction entered of record, was the proper mode of redress.
APPEAL from an interlocutory order of the Court of Equity of MONTGOMERY dissolving an injunction; Caldwell, J.
J. H. Bryan for plaintiff.
Blackmer for defendant.
D. A. Davis, as cashier of the branch of the Bank of Cape Fear, at Salisbury, obtained a judgment at law against William McRae, Calvin Cochran and others, upon which an execution issued (141) directed to the sheriff of Montgomery County, in which county all the defendants resided. The defendant Cochran was the sheriff of that county, and, as such, he proceeded to collect the money out of his codefendant, the principal in the execution, and did collect the whole sum out of him, but he appropriated the money to his own purposes and made no return of the execution. Execution again issued, and Cochran having gone out of office, his successor was about to make the money a second time out of McRae when he was restrained by the writ of injunction issued in this case.
On the coming in of the answer, the court ordered the injunction to be dissolved, and the plaintiff appealed.
There is no error in the decretal order. The injunction was improvidently granted, and ought to have been dissolved on the ground that the bill discloses no equity.
The case turns upon the effect of a payment by McRae, the principal in the execution, to the sheriff, Calvin Cochran, who held the execution, and who was one of the defendants in the execution. Was this a satisfaction of the judgment? If it was, then the execution which afterwards issued, and in regard to which the injunction is granted, was, in law, of no force or effect, and the plaintiff had a plain remedy in the court from which it issued, by writ of audita querela, to have the execution called in and satisfaction entered on the record. The same thing could have been done upon notice and motion in the nature of an audita querela, which, in our practice, is substituted for the ancient judicial writ issued by the court where the judgment was not (142) purchased out of the court of chancery like an original writ. See Fitzherbert's Natura Brevium.
If the payment by McRae to Cochran was not a satisfaction, then, of course, the plaintiffs have no equity. So, taking it either way, the question — satisfaction or no satisfaction — was a dry question of law; and there is no equitable ingredient involved in it.
PER CURIAM. Decretal order affirmed.