Balkum v. Harper's Administrator

50 Ala. 372

• Court: Supreme Court of Alabama
• Decided: January 15, 1874
• Status: Published

Opinion

B. F. SAFFOLD, J.

The appellant having obtained an injunction, restraining the appellee from enforcing an execution at law against his property, the chancellor dissolved it; whereupon he appealed to this court. During the pendency of the appeal, the appellee sued out another execution, in violation of the injunction, which had been restored for the purpose of the appeal. The appellant then filed the bill of this case, as a supplement, to enjoin the second execution. The court dismissed it, on demurrer, for want of equity, on the ground that the remedy followed the original cause, which was in the supreme court. From this decree of dismissal the appeal is taken.

The authority of the chancellor to act in the matter was not impaired by the transfer of the cause to this court. It is the judgment of the primary court that is affirmed. On reversal and remandment, the cause resumes its former position. If a judgment is rendered here, it is. in contemplation of law, the judgment of the lower court. This court does not issue the process necessary for the enforcement of its own judgments, but certifies them to the courts whence the causes come for execution. The court of original jurisdiction must first be applied to, for every infraction of its authority, and the party aggrieved by its action may then come here by appeal.

The suing out of the second execution was a clear contempt of the chancery court, and properly remediable by process for the trial and punishment of the contempt. Gates v. McDaniel, 4 Stew. & Port. 69; S. C. 3 Port. 356. As, however, the supplemental bill is permissible, and the cause is here, the decree of the chancellor is reversed, and a decree will be rendered in this court, according to the prayer of the bill, on the authority of Balkum v. Yonge, adm’r, at the present term.