Gorsuch v. Thomas

Alvey, J.,

delivered the opinion of the Court.

The bill in this case was filed for an injunction to restrain execution on a judgment at law; and the question, of the right to have the execution restrained, upon the-allegations of the bill, is raised by a demurrer to the bill. The Court below sustained the demurrer, and dismissed the hill; and in so doing we find no error.

There is really nothing alleged on the face of the bill that could afford ground of relief by injunction. It is not alleged that the judgment at law was obtained by fraud, or by such surprise or mistake of the defendant, that, by the use of due diligence and proper-attention to the case, he could not have avoided. According to the short entries of the judgment, a copy of which is filed with the bill, the judgment was entered by confession in January, 1815, on terms to be filed. In March following this judgment was extended for $195.39, with interest from that date; and, according to the entries, a note and account were then filed, though copies of them have not been exhibited with the bill. In December, 1816, a credit of' $81.20, and in December, 1819, another credit of $50,. were entered on the judgment; and a fi. fa. was then issued for the balance, returnable to the March Term of' Court, 1880. The appellant in his bill alleges that he had paid the amount of the account filed at the extension of the judgment, before the suit was brought, and that the plaintiff in the judgment subsequently agreed that he should have credit for that amount on the judgment;. but that no such credit has been given. He also alleges that the two credits entered on the judgment are erroneous, as being for amounts less than were actually paid; and that there would be but a small amount, if anything at all, due on the judgment, if the proper credits were-given. He fails, however, to state the amount of the credits to which he is entitled, or when the payments, were made.

*339 It is perfectly well settled, that if a party has a good defence at law, and neglects to avail himself of it there, in the proper way, and at the proper time, or if he suffers judgment to go against him by neglect, he can have no relief in a Court of equity. .Nor does the mere fact of the discovery of evidence since the recovery at law form sufficient ground for an application to a Court of equity lor relief: hut there must be conscience, good faith, and duo diligence shown, as a condition upon which such application will be entertained. Here, however, it is not pretended that the evidence, made the ground of the application in this case, could not have been produced and made available at law, by the use of proper care and diligence. To entertain such an application as the present would he altogether without precedent. 6 Gill & J., 312; 20 Md., 305 .

But if the party be really entitled to have additional credits entered on the judgment to those already given, the remedy is verjT ample, and, at the same time, summary, by which full relief may he obtained. By motion in the Court where the judgment was recovered, a rule may be obtained upon tbe plaintiff to show cause why such credits shall not he allowed; and upon such rule the Court may stay the execution until the matter of the right to the credits claimed be fully investigated; and if it be found that the judgment is subject, to credits not given, or that it has been satisfied, the Court may direct entries to be made accordingly. Formerly such relief was obtained by audita querela, hut in modern practice it is obtained in a more summary way by motion. Job vs. Walker, 3 Md., 129 ; Shafer vs. Shafer, 6 Md., 518 ; Huston vs. Ditto, 20 Md., 320 , 321 ; U. S. vs. McLemore, 4 How., 286. With such remedy in the Court where the judgment was obtained, there can he no sort of propriety in coming to a Court of equity for relief.

*340 (Decided 13th January, 1882.)

We shall therefore affirm the decree appealed from, with costs to the appellees.

Decree affirmed.