*The Portsmouth and Columbus Turnpike Company v. Legrand Byington and others.
Where an injunction restrains proceedings of a judgment creditor against certain specific property, claimed by a third person, without interfering with the remedy against other property, or the person of the debtor, who is not made party to the bill, the court will not, on dissolution of the injunction, and dismissal of the bill, decree against complainant the amount of the judgment and penalty.
Where, from the papers and certificate of reservation, there appears to be no question remaining for decision, the case will be stricken from the docket, or remanded.
*115This is a Bill in Chancery from Pike county.
The defendant, Byington, had recovered judgment at law against one McFarland, and caused execution to be levied upon some bridge timbers that had been prepared, by the judgment debtor, to.erect a bridge for the complainants. The complainants, thereupon, filed their bill in chancery, setting forth, that they would sustain great loss and injury by the sale of said timber, and the delay in erecting their bridge, and prayed an injunction, to restrain Byington “ from all further proceedings upon said execution, and levy against said timber,” and on a final hearing, “ that the said execution and levy be perpetually enjoined, so far as it respects the levy on said timber, or any other materials for said bridge,” and for general relief. McFarland, the judgment debtor, was not made party to the bill ; an injunction was allowed, as prayed for, and bond given.
The bill was demurred to, and, at the November term, 1843, upon the circuit, the injunction was dissolved, and the bill ordered to be dismissed. Before the entry of this order, a motion was made, in behalf of the defendant, Byington, for a decree against the complainants for the amount of his judgment, with the penalty under the statute. The question upon this motion, was reserved to bank. But, in making Í15] up the ^journal, the motion was overlooked, and no mention made of it in the entry, which was as follows :
“ This cause came on to be heard, upon the demurrer of the defendant, Legrand Byington, to the complainant’s bill, and joinder of the complainants, and was argued by counsel; on consideration whereof, the court held the said demurrer to be well taken. It is, thereupon, ordered and decreed, that the injunction herein before granted, stand dissolved ; that said bill stand dismissed, with costs ; and, thereupon, the court order that this cause, and all questions pending in it, be reserved for decision in bank, at the next term.”
A motion was made in bank, by complainants, to dismiss the case.
J. L. Green, in support of the motion to dismiss.
The whole case is, by this decree, disposed of. There was, in truth, no cause or question pending, which might be reserved for decision here. The counsel for the defendant, has argued, at length, a question which he assumes is before this court for adjudication. But, we suppose the court will look to their own record, first, to see whether, in truth, there is any case pending. There is no intimation, or allusion, in the decretal part of this order, that any question remains to be disposed of. The decree is final, full, and complete. The parties were *116out of Court. There was no ease remaining. What questions could be pending ?
Again : The certificate does not show that any question, “ important or difficult,” has arisen in any of the proceedings of, or in relation to, the cause. Nor does it there appear that there was any difference of opinion between the judges who heard the cause, in relation to any question connected with it. - .
There is no case, properly, here; and the cause should be dismissed, or stricken from the docket.
If the court shall differ with me in opinion, I shall then ask to be heard on the question discussed by Mr. Byington, if that is the question reserved by the court.
*Legrand Byington, in support of his motion for a decree.
The respondents insist that a decree must go against the complainants, for the full amount of the judgment at law, with the penalty fixed in such cases.
First: Because the case presented, is within the very letter of the statute. Swan’s Stat. 711, sections 41 and 42. The statute is general and peremptory. It enacts that, “ in all cases, where an injunction is allowed, to stay proceedings at'law, in an action for the recovery of money, only,” upon a dismissal, etc., “ the court shall render a decree in favor of the respondent (plaintiff at law,) for the damages,” etc., recovered at law, and penalty.
Second : Because this case is within the obvious and necessary meaning and spirit of the statute, as well as the letter. The objects of the statute are manifest. It was enacted for the purpose of giving a judgment creditor an indemnity for the contingent losses and injuries that he might sustain, by reason of being compelled to litigate those rights in a court of equity, which had been once determined in a court of law ; and, for the additional purpose of securing, by the injunction bond, the payment of liquidated debts, existing in judgment, the payment of which is not only delayed, but endangered, by the operatiou of the injunction.
Third ; Because, by the oblique process to which the complainants resorted, they would be enabled, unless a decree is pronounced against them, to destroy the securities of a judgment creditor, by abusing the process of a court of equity. By the dismissal of the bill, and the dissolution of the injunction, the court have already found that the injunction ought hot to have been allowed, and that no reason existed for filing the bill. And yet, by these means, alone, the complainants *118appropriated to tlieir own use, the very property which had been levied upon, to pay the respondent’s judgment.
Fourth : Because, unless a decree is pronounced against the complainants, the respondents have no adequate remedy whatever; not 117] even the poor one of prosecuting them, in a court *of law, with a prospect of success. The judgment debtor, McFarland, can not be pursued with any hope of success, because he has, since the injunction was allowed, become utterly insolvent, and a fugitive from his creditors.
Fifth : Because, if a decree be not pronounced against the complainants, for the amount of the judgment and penalty, the respondent has no remedy upon the injunction bond, and the giving of the bond was a farce. Upon the allowance of an injunction, in this class of cases, bond is required, in double the amount of the debt and costs. It was so given in this case. It is conditioned, as usual, that the complainants shall pay the amount of the decree, and was designed as the indemnity of the respondent, for his judgment. Now, the complainants say no decree can go against them, except for costs. If this be correct, what indemnity does the bond afford to the judgment creditor ? How is his debt secured by it, and what has he to indemnify him for the loss of his levy, of which he has been deprived, by means of a bad bill, and a bad injunction ? If he looks for the property, it is gone. .If he looks for the judgment debtor, he is gone. If he then turns to the bond, which was to be his indemnity for the occurrence of these things, the complainants come forward, and pay the costs, merely, of the illegal proceeding, under color of which they have accrued, and claim that is a full compliance with its condition. Where is the creditor’s debt; where his judgment; where his levy; where his indemnity ? All, all sacrificed to the wickedness or stupidity of the complainants, in bringing a vexatious suit, which a court of chancery have already decided was improperly and wrongfully brought.
Sixth : Because the complainants did not make McFarland, the judgment debtor, a party complainant in the bill, as they ought to have done. Had the judgment debtor been made a party, the usual condition of the injunction bond would have operated as an indemnity for the debt, and there is no pretence but that the decree would then have been pronounced. By omitting to do, then, what it is clear they ought to have done, they have prejudiced the respondents’ rights, and 118] facilitated ^the means of defrauding him, unless the statutory decree shall be pronounced against them.
*119Seventh : Because, in a ease like the present, when the complainants, by their interference, if not improperly, at least in an improper way,, have not only “ stayed proceedings at law, for the collection of money, merely,” but-have rendered the collection of an honest judgment hopeless, unless they are compelled.to pay it, the court will not contract the operation of a wholesome statute, if, by any means, they can bring it within the terms or meaning of the act.
If the court are against me upon the foregoing points, then I claim that the court can, and ought to pronounce a decree against the complainants, for the amount of the judgment, without penalty, and upon equity principles, independent of the statute. That it is competent for the court, as a chancery court, to do so, can not, I apprehend, be doubted; and that such a decree would be equitable between the parties, may be gathered from the proceedings in this cause, and their influence upon the rights of the parties. I have been unsuccessful in my endeavors to find, in the reported decisions of this court, any case analogous.to the one at bar. As it is, therefore, presumed to be a new question, I apprehend the court will hesitate long before they give to the statute such a construction as is claimed by the complainants in this cause. Should the court determine, in the authoritative form of a reported decision, that they can render no decree for the amount of' a judgment improperly enjoined by any person other than the judgment debtor, it would be construed into the broadest and most licentious invitation to all judgment debtors, to procure the filing of bills, by collusion, whenever and wherever the payment of costs, merely, would be considered only an equivalent for the opportunities thus to be afforded, of placing their effects beyond the reach of execution.
N. K. Clough, contra.
We contend that, if the court can render up a decree for costs, they can go no further, the turnpike company not *being party to any [119 judgment at law, obtained against them by the respondent, Byington, and, there being no judgment whatever enjoined, but the prayer of the bill is simply to enjoin the respondent, from proceeding, by an execution, issued on a judgment rendered in his favor, against one John McFarland, to sell bridge timber, claimed by the turnpike company. We, therefore, contend that, as the court having dissolved the injunction, preventing the sale of the bridge timber, which is all that is enjoined by the bill, there the action of the court must stop. If the court, upon the dissolution of the injunction, and dismissal of the bill, can render up a decree for costs, yet we contend that there can be-*120no decree rendered in favor of the respondent for debt, or damages at law, there being no judgment, or money-claim of the respondents, enjoined.
The dissolution of the injunction, and dismissal of the bill, permits the respondents to proceed with their execution, and sell the timber, or, if the timber has been used, or the company' refuse to give it up, on demand, they may bring an action of trespass, or trover. But, as there has been no injunction against the collection of a judgment, or money, in any shape, in favor of the respondents, there can be no decree in their favor for the recovery of money.