Thompson v. Munson

Mississippi Supreme Court
Thompson v. Munson, 43 Miss. 176 (Miss. 1870)
Peyton

Thompson v. Munson

Opinion of the Court

Peyton, C. J.:

This cause comes up by appeal from a decree of the chancery court of Attala county.

The complainants, Isaac W. Scarborough and William B, Thompson, state in their bill of complaint, that on the 20th day of March, 1867, Samuel Munson obtained a judgment against them, in the circuit court of said county, for the sum of $173 10, and that an execution was issued on said judgment, and placed in the hands of John C. Lucas, the sheriff of said county. That they tendered to the said, sheriff the amount of said judgment and execution, and all interest and costs, and that he refused to receive the same, and threatens to levy on the property of the complainants. To restrain which they pray for and obtain an injunction.

The said sheriff, Lucas, in his answer, admits the judgment and execution, as set forth in the bill of complaint, and that the complainant, Scarborough, one of the defendants in said judgment and execution, offered to pay the amount of said execution and costs, in United States treasury notes, but denies that any formal tender or presentation of said notes had ever been made to him, and states that the plaintiff in the judgment refused to receive said treasury notes in satisfaction of said judgment and execution, and that he was- not willing to receive the same on said execution, in disregard oí' the command of the writ oí fieri facias, and against the will and without the consent of the plaintiff in the execution. But states that he has been, at all times, ready and willing to receive the amount due on said execution, in specie, according to the command thereof.

Samuel Munson, in his answer to the bill of complaint, admits that he obtained the judgment stated in the bill, and that he caused execution to be issued thereon, and placed in the hands of the sheriff, as alleged. And although he has no'personal knowledge of the fact, he supposes it to be true that said Scarborough offered to pay off said execution in United States treasury notes. That he declined to take any*179thing but specie in payment of said judgment and execution because, as he was advised and believed, he was by law, entitled to demand and receive the amount due him on said, execution, in specie, and avers a readiness, at all times, to receive the same, in specie.

At the September term of said court, 1867, the said Samuel Munson and John C. Lucas moved the court to dissolve the injunction on bill and answers, which motion was sustained by the court, and hence the appeal to this court, where the appellants make the following assignments of error:

1. That the judgment was rendered without making any disposition of the pleas of the defendants in the court below, upon which there was no issue joined, nor demurrer or replication filed thereto by the plaintiff in the court below.

2. That the judgment rendered for specie should have been for dollars and cents, without designating the character or kind of money.

3. The court erred in granting instructions for the plaintiff.

4. The court erred in dissolving the injunction upon bill and answers.

We think it more than probable that there were errors in the rendition of the judgment at law in the circuit court. Be this, however, as it may, we are precluded from going into any such enquiry upon this appeal from a decree of the chancery court, by the issuance of the injunction in this case, which operates as a release of all errors in this judgment at law, in the same manner as if the parties had signed and sealed a release of such errors. Rev. Code, 551, art. 68.

The appellants have mistaken their remedy. If there were errors in the judgment at Iuav, a court of equity is not the proper forum to correct them. As there was no equity in the bill, the court did not err in dissolving the injunction upon bill and answers.

The decree must, therefore, be Affirmed.

Reference

Full Case Name
W. B. Thompson v. Sam'l Munson, Admr.
Status
Published
Syllabus
Effect of Injunction upon Judgement Enjoined — Ebbobs Cubed — The suing out of an injunction to restrain execution of a judgment at law, operates as a release of all errors in such judgment, in the same manner as if the parties had signed and sealed a release of such orrors.