
    *Joseph Bowry & Sons et al. v. Odell & Brother et al.
    A lien on property, subject to levy on execution, Tvas not obtained by filing a bill, under the act of February 25, 1848, amendatory of the chancery practice act of 1831 (46 Ohio L. 96); therefore, such property, when not in the hands of a receiver, might be taken on the executions of third persons, notwithstanding the pendency of such a bill.
    'The pendency of an action at law was indispensable to authorize the filing of such a bill.
    
      Beserved in the district court of Montgomery county.
    The bill, which was filed November 28, 1848, represents that complainants had, on that day, commenced an action in the court of common pleas against Odell & Brother, on a bill of exchange, and also on an'account for goods sold, etc., and that said suit was then pending; further, that Odell & Brother were about to dispose of their stock of goods, consisting in part of goods bought of complainants, with intent to delay and hinder the collection of their said debt, and that the defendants had no other property, etc. The bill further states the facts upon which their belief is founded, and j>rays that the said Odell & Brother might be enjoined from any disposition of their property, credits, or effects, inconsistent with the security of complainants. The injunction was allowed by the court of common pleas, then in session. The writ was issued on the 29th of November, and served the same day. On the 30th of November, the defendants filed their answers, and moved the court to dissolve the injunction. The answers admitted the indebtedness charged in the bill, but denied that they were about to dispose of their stock of goods to hinder or delay complainants in the collection of their debts; and deny that they have no other property than their stock of goods, and averred that they have and own a bindery, worth §300, and *a wagon and horses, worth at least $400, in addition to their stock of goods, which they valued at about $3,000. On the 16th of December, the motion to dissolve the injunction was overruled. At the same term, the defendants produced, by their attorneys, three warrants of attorney, executed by Odell & Brother, to confess judgments, as follows : one in favor of E. O. Goodman, for $864.56, purporting to have been executed September 20, 1848; one in favor of Parrott & Clegg, for $147.54; and one in favor of James Odell, Sen., for $500. Upon these warrants, judgments were entered against the defendants, and on the 29th of December, the plaintiffs, in said judgments, had execution issued thereon, which were levied upon the stock of goods, bindery,, and wagon and horses aforesaid. These were sold by the sheriff, realizing the sum of $1,386.
    At April term, 1849, complainants obtained a judgment on the-claim mentioned in the bill, in the action which had been commenced thereon, for $271.91. On this execution was issued, and returned by the sheriff, “no goods, chattels, lands, or tenements whereon to levy.” In May, 1849, complainants filed a motion for the distribution of the proceeds of the sale of the effects, levied on by virtue of the former executions, which, after argument, ttw? court overruled. At the August term, 1849, complainants obtained a rule, calling upon the defendants to show cause why an attachment should not issue against them for violating the injunction. Answers having been filed, the rule was discharged. On the 29th of November, 1850, complainants filed a supplemental bill, making E. O. Goodman, Parrott & Clegg, and James Odell, Son., defendants, and praying a decree against them for so much of the proceeds of said sale as will satisfy the judgment and costs recovered against Odell & Brother. The defendants demurred. The demurrer was overruled, and the defendants answered.
    At the term of November, 1852, the court entered a decree in favor of the complainants, against E. O. Goodman, for 5188.26; ^against James Odell, Sen., for 5109.25; and against Parrott & Clegg,for 535.20 — making the sum found to be due to the complainants 5339.91. From this decree the defendants appealed, and the district court reserved the case.
    
      Lowe & Forsyth, for complainants,
    contended that the injunction was the proper remedy, and the only available one by which complainants might secure their claim; that complainants had, by their bill, acquired an equitable lien upon the goods of the debtor, which was prior to the lien of a subsequent judgment; that the statute authorizes the issuing of an injunction to restrain the defendant in the suit at law from disposing of his property, as well as those having his property in custody. Cited vol. 5 Western Law Jour. 467; Gurney v. Tannenwald, 18 Ohio, 481.
    
      F. W. Davis, for defendants,
    advanced the following propositions: No suit was pending when the bill was filed, the action at-law not having been commenced until the day after the filing of the bill. The bill is defective, in not sotting forth sufficient, grounds for the injunction. The affidavit is insufficient. The complainants obtained no prior lien by virtue of the original bill.
   Thurman, C. J.

As the goods mentioned in the bill have been sold since it was filed, upon the executions of certain of the defendants, the bill must be dismissed for want of a subject for a decree to operate upon, unless the complainants, by filing their’ bill, obtained a lien preferable to those acquired by the levies of fhe executions. If they did, they had a right to be first paid out ■of the proceeds of the sales, and are entitled to a decree for the sum duo them, against the execution creditors, who received the whole proceeds, the proceeds being sufficient to satisfy the complainants’ claim.

The filing of a creditor’s bill and service of process after a ^judgment at law, under the 16th section of the chancery practice act of 1831 (Swan’s Stat., old ed. 704), gave a lien by the -express terms of that section ; and even without an express provision to that effect, a lien would thereby have been created, pirobably, by the known rules and usages of equity. Hence the existence of such a lien has been frequently recognized by our courts. .Douglas v. Huston et al., 6 Ohio, 156; Miers & Coulson v. Zanesville & Maysville Turnpike Road Co., 13 Ohio, 197.

But it has never been held, so far as we are advised, that a lien upon property subject to sale upon execution', was created by the filing of a bill under the 15th section of the act, or under the amendatory act of 1848. 46 Ohio L. 96.

Nor are we able to perceive any sufficient ground upon which-to claim such a lion. It finds no support in the usages of courts -of chancery, for, independent of statutory provisions, the proceeding is unknown to those courts. A bill to reach propoei'ty not liable to legal process, and subject it to the payment of a judgment, is now a well known equitable remedy, however much it may once have been questioned; but not so a bill to enjoin a disposition of -effects until a judgment can be obtained. The former needs no statute to support it; Bayard v. Hoffman, 4 Johns. Ch. 450; but the latter is the mere creature of the statute. Looking to the .statute, then, we find no provision in it giving a lien in a case like the present. The object seems to have been to restrain a disposition of property until a judgment could be obtained and an execution be levied upon it. It was not intended to dispense with an •execution where the property was subject to that process. It was not intended that a creditor, by filing a bill like that before us, should be able to tie up) all a debtor’s property, so that no other creditor could reach it during the pendency of the bill. Such a provision would be extremely pernicious, and open a wide door to •collusion and fraud.

We are therefore of opinion that the complainants, by filing their bill, obtained no lien upon the goods in question; that they *were well taken upon the defendants’ execution, and the execution creditors are entitled to their proceeds.

It may be well to remark, in order to guard against misapprehension, that we express no opinion upon the question, whether a lien' upon equities, or choses in action not subject to execution at law, might be obtained by filing a bill under section 15 of the act of 1831, or the act of 1848. Upon such a bill a decree might be taken, after judgment recovered, subjecting such equities or choses in action, to its payment, as upon a bill filed under section 16. Gurney v. Tannenwald, 18 Ohio, 486. Consequently, there is much reason, in such a case, for claiming a lien; but as the question is not before ub, we do not decide it.

There is another objection equally fatal to the complainants’ case.. Their bill was filed and injunction obtained before their action at-law "was commenced. But by the express provisions of the statute, the pendency of an action is indispensable to authorize the filing of such a bill. A common-law action can not be said to be pending-before mesne process is issued, and there is nothing in the proofs before us to show that process, in the complainants’ action.at law, was issued before Novemb’er 29, Their bill was filed and injunction allowed November 28.

It being unnecessary to decide the other questions argued by-counsel, we express no opinion upon them.

Bill dismissed.  