John Smith Brien v. Ralph Loftus and another, 3 Rob. 163

Martin, J. Loftus and Whitehead, having obtained a judgment against Brien and Young, in one of the Circuit Courts of the State of Mississippi, procured an order of seizure and sale from the judge of the Ninth District of this State, who, on the application of Brien, granted an injunction to stay the sale. The defendants are appellants from a judgment dissolving the injunction.

The injunction was obtained on a petition sworn to by Brien, alleging, among other grounds on which he sought relief, that the execution of the judgment obtained in the- State of Mississippi was there enjoined, the plaintiff having appealed to the Court of Chancery of that State for relief against the judgment.

The defendants, in their answer to the petition for the injunction, pleaded the general issue, but did not expressly deny that the plaintiff had obtained an injunction from the Court of Chancery of the State of Mississippi, staying all proceedings on the judgment of the Circuit Court of that State, on which the order of seizure and sale, granted by the judge of the Ninth District, had been issued.

They aver, on the contrary, that the injunction obtained from the Court of Chancery was sued out wrongfully, and with the intention of depriving the defendants of the benefit of the judgment rendered in their favor by the Circuit Court.

The counsel for the defendants has urged, that the injunction granted by the Court of Chancery of the State of Mississippi, being posterior to the order of seizure and sale obtained in this State at a time when the defendants had an absolute right thereto, cannot arrest the action of a court of this State in their favor, in an action properly instituted The court, in our opinion, erred.

The judgment on which the order of seizure and sale was issued, cannot now be carried into execution by the court which rendered it, until the proceedings in the Court of Chancery in the State of Mississippi terminate in favor of the original plaintiffs, nor can it be now ordered to be executed by us. Should the plaintiff obtain relief in the Court of Chancery, he ought to be protected in this State. It is, therefore, ordered, that the judgment be reversed; that the injunction be reinstated, and provisionally maintained until the termination of the suit in the Court of Chancery of the State of Mississippi.

The original judgment was rendered by the Circuit Court in Mississippi, 10th June, 1840; the order of seizure and sale was granted by the District Court in this State, on the 11th August following ; and the injunction issued by the chancellor in Mississippi, on the 26th February, 1841.