Connery v. Swift

9 Nev. 39

• Court: Nevada Supreme Court
• Decided: October 15, 1873
• Status: Published

Opinion

By the Court,

Hawley, J.:

Plaintiff seeks to enjoin the sale of certain personal property under an execution issued upon a judgment rendered against her in a justice’s court, and bases her claim for relief upon the grounds : 1st, that the judgment is a nullity; 2d, that it was obtained by fraud. At the hearing upon the question of fraud, the court dissolved the temporary restraining order theretofore issued. From this order plaintiff appeals.

From the pleadings we think the only ground upon which plaintiff would be entitled to the relief sought is that of fraud; and it is not contended that the court erred in deciding that question adversely to plaintiff. If the judgment was erroneous, the remedy of plaintiff was by appeal; if void, she had a remedy by motion to have the execution set aside. If these remedies have been lost, without any fault or negligence of plaintiff, and if we concede that the judgment is entirely void (a question we have not examined), still there is no necessity for the interference of a court of equity to restrain the enforcement of the execution, because there is no showing that plaintiff cannot have an adequate and complete remedy at law. There is no allegation that defendants are insolvent or unable to respond in damages. The averment “that said C. M. Taylor, defendant herein, has no visible property exempt from execution ” is not sufficient. Moreover, the averment is positively denied in the answer. The restraining order was properly dissolved.

The order appealed from is affirmed.