Newell v. Morton

The counsel for the appellant insists that the injunction ought to have been dissolved, it having been shown that the execution in the State of Mississippi had run out. On the other hand, the appellee insists that there is no final judgment, but that the order of the court amounts to nothing more than a continuance until the next term of the court. We cannot but regard this as an interlocutory judgment, pronounced after hearing the parties, and from which an appeal may well lie, because it might operate irreparable injury.

On the merits, the evidence shows that a fieri facias was issued in Mississippi, that several tracts of land were levied on, but that in consequence of two-thirds of the appraised value not having been offered, they remained unsold. But it appears that they were still under seizure, when the 'executory process was issued on the same judgment in this State.

We concur with the District Court that it is oppressive, and against equity to carry on two executions at the same time ; and we think the appellee has no good reason to complain, that the injunction was maintained for six months, especially as the right was reserved to him of showing, at the next term of the District Court, that he had exhausted his remedy in the State of Mississippi.

Judgment affirmed.