Macy v. Lloyd

23 Ind. 60

Opinion

Perkins, J.

An execution issued on a judgment in the Supreme Court for costs.

Ross $ Pffinger, for appellants. P. P. Dickey and D. D. Pratt, for appellee.

Lloyd, against whom it issued, filed a complaint for an injunction before the judge of the Miami Common Pleas. The injunction upon the collection of the execution was made perpetual by the Common Pleas Court. It was upon the clerk of the Supreme Court, who issued the execution, and the sheriff of Miami county, who was attempting to collect it. Lloyd did not pretend that he had paid the judgment for costs against him, but based his complaint upon the ground that the judgment in the Supreme Court against him, if there was one, as the writ of execution recited, was erroneous.

TTis remedy was to have moved to' set aside the judgment and writ upon it in the Supreme Court, upon a proper affidavit. If a judge of that court could not have granted him a temporary restraining order on such affidavit and motion till the same could be heard by the court, perhaps the Common Pleas might have granted such order. See Curtis’ Pig. 243. The Indiana and Illinois Railroad Company v. Williams, 22 Ind. 198; Dunn v. Crocker, Id. 324. See Hall v. Palmer et al., 18 Ind. 5.

Per Curiam.—The judgment below is reversed, with costs, remanded, etc.