
    GEORGE A. BOHRER AND JULIUS S. BOHRER v. JOHN C. FAY, WILBUR S. SUPPLEE, AND ALEX SHARP.
    Equity. —
    No. 4711.
    I. A court of equity will not enjoin a judgment at law,-wlieie the remedy 1 is adequate and complete at law; and where a motion to open the judgments on the same grounds as those set forth in the bill lias been made in the court where the judgments are pending, and which motion is undetermined, there is no ground of relief in eqnitj'.
    II. The jurisdiction in chancery to stay proceedings at law upon a judgment is well established, but cautiously exercised. A mere defect of jurisdiction is not sufficient. Equity will interfere only to prevent injustice which lias notbeeu brought about by the negligence or inattention of the party aggrieved.
    III. The. complainant, in the hill must allege and prove that he lias a good defense to the action at law, and explain the merits of such defense, and how he lias been prevented fi om availing himself of it.
    STATEMENT OE THE CASE.
    This is a bill in equity to enjoin the defendants from enforcing a judgment at law, and a decree to that effect was obtained in the court below. The judgments whose collection is enjoined were rendered April 22, 1871; the bill in this case was filed November 28, 1875. Th¿ complainant Julius S. Bohrer was the principal defendant therein, and the summons in the case was returned non est, and a judgment was taken by default for failure to appear and answer. Oil the same day the process was returned, a writ of garnishment, was returned served upon George A. Bohrer, the other complainant herein, who filed an informal answer thereto, not under oath. On the 16th day of March, 1871, interrogatories were filed and served upon the garnishee by Mr. Fay, who was plaintiffs' attorney in the action at law. No answers were filed to the interrogatories, and a judgment of condemnation against the garnishee without an inquest was entered, upon which execution was issued May 22, 1871.
    On June 24, 18|1, the following motions were filed to strike out the judgments at law:
    
      “The garnishee, George A. Bohrer, moves the court to set aside the judgment rendered against him in the above cause, and assigns as reasons therefor: 1st. That he had answered fully the attachment. 2d. That the interrogatories served on this garnishee were not authorized by law. 3d. That the attachment affidavits are fatally defective. 4th. That the garnishee is not indebted to the defendant, and has valid, legal, and meritorious defense.
    “Samuel L. Phillips,
    “ Attorney for Garnishee.”
    
    “The defendant, protesting against the jurisdiction of the court, moves the court to set aside the judgment by default entered in the above, and assigns for reasons: 1st. That he had no notice that the said .cause of action was pending against him. 2d. That the said judgment is void, as the said court had no jurisdiction to render a general judgment against the defendant, there being no service of process of the said defendant, he being a citizen of the State of Maryland. 3d. That there is nothing due to#the said plaintiff by reason of the cause of action set forth in said declaration.
    “Julius S. Bohrer, Defendant.”
    
    And thereupon, on the same day, the judgments were by the court vacated and set aside; from which order the plaintiff' appealed to the court in general term.
    On the 23d day of February, A. D. 1872, the order striking •out said judgments was reversed; and on March 5, 1872, a new motion was filed, by leave of the court, to strike out the judgment against George A. Bohrer, garnishee, which motion had been heard but not determined when this bill was filed.
    The suit remained in this condition until the 23d day of September, 1875, when a writ of execution was again ordered against the garnishee, and the complainant then filed the bill herein to restrain all further proceedings in the suit at law; the grounds set up in said bill for relief being substantially embraced in the motions referred to in the suit at law, to wit, irregularities and want of jurisdiction.
    
      
      R. Ross Perry, for complainants.
    A court of equity will relieve against a judgment at law, provided the garnishee show a sufficient excuse for his delinquency in failing to answer. (Drake on Attachment, sec. 637c; Baker v. Glover, 2 Cranch C. C. R., 682.)
    The question of jurisdiction is always open to inquiry, whether it be raised directly or in a collateral proceeding. (Drake on Attachment, sec. 85; ex-parte Watkins, 7 Peters, 572; 1 Peters, 329.)
    The affidavits in this case were fatally defective in two respects : 1. The affidavit of the witness does not swear to the non-residence of the defendant as the statute requires. (Rev. Stat. D. C., sec. 782.) This defect is fatal. (Drake on Attachments, secs. 85-98.) 2. The affidavits both purported to
    be made upon information and belief, and are in this respect fatally defective. (Drake on Attachment, secs. 100,104,106, 108, and other authorities there quoted; Garner v. White, 23 Ohio, 192.)
    An answer was actually filed by the garnishee on the 9th of December, 1870, before the return day of the writ. There was not then, and is not now, in force any rule of law or of court requiring this answer to be under oath. (Rule 16, new rules; rule 17, old rules.) The proceedings, therefore, of the 15th of March, 1871, concerning interrogatories, were irregular and unauthorized. The rule of court providing for these interrogatories was not passed until the 15th day of February, 1873. The interrogatories in question were not accompanied by any rule to answer, and were served by Fay in person, instead of the marshal. The whole proceeding was entirely improper, unauthorized, and void.
    It appears from the testimony of Bohrer, that while he did not recognize Fay’s authority in the premises, he yet prudently took the copy left with him to Mr. Meigs, the clerk of the court, and was informed by him that no further answer was necessary in the premises.
    The judgments entered on the 22d day of April, 1871, were entirely irregular. 1. There was a general judgment entered against the defendant for $800, interest and costs. In an attachment proceeding, where the defendant is not served with process, no personal judgment can be rendered against him, but only a condemnation on the res attached. (Boswell v. Otis, 9 How., 336; Drake on Attachment, sec. 5.) 2. Judgment of condemnation was entered against the garnishee without any inquisition or finding by the court of assets in his possession. This was irregular and void. (Stephenson v. Giberson, 1 Cranch C. C. R., 319.)
    
      John C. Fay, for defendants.
    A court of equity will not enjoin the collection of a judgment at law merely on account of a defect in jurisdiction, or for want of jurisdiction. (14 How., 584; 24 Wis., 394; 11 Wis., 391; 19 Cal., 78; 6 Johns. Ch., 28; 5 Wall., 413; 49 Cal, 267.)
    That irregularity in obtaining the judgment, unless substantial injustice has been done, is insufficient to warrant the interference of a court of equity. (Kerr on Injunctions, 23; 10 Iowa, 121; 9 Iowa, 367; 6 Gill., 391; 17 Md., 195.)
    That the complainants had a plain, adequate, and complete remedy at law.
    To warrant interference where a party fails to defend a suit, it must appear that the defense was not available in a court of law, or he was prevented by fraud, accident, or the wrongful act of the other party, without negligence on his part, from availing himself of it. (1 Comstock, 274; 1 Breese, 60; 1 Bibb, 173; 20 How., 161; 17 How., 443.)
    The complainants must show themselves guilty of no laches before they seek relief in equity. (5 How'., 192.)
    Eelief will not be granted after judgment, unless some special equitable grounds can be shown. (Kerr on Injunctions, 23.)
    The complainants having allowed four years to elapse, and the statute of limitations having intervened to bar the defendant’s claim, ought not to be permitted, by taking advantage of their own laches, to prevent the defendant ever recovering his demand. '
    The irregularity complained of had been heard and determined at law on a motion to strike out the judgment, and the court in general term had denied the motion; and we contend that a court of equity will not enjoin a judgment where the question of irregularity has been passed upon by a court of law, even though the court erred in its decision.
    The equities of this case are with the defendant. The proof shows that at the time the attachment was laid in the hands of George A. Bohrer, he, George A. Bohrer, had property in his hands of the complainant, Julius A. Bohrer, exceeding the sum of two thousand dollars, more than twice the defendant’s demand; and, with full notice and knowledge of the attachment and the judgment against him, he paid it over to Julius S. Bohrer, and to a subsequent attaching creditor, except $350, which he still has.
    He also pr’ocured the attachment of Supplee’s judgment in his own hands, and did his utmost to have it condemned in favor of Shaw.
    The affidavit is in exact conformity with the rules of court. (Rule 17, p. 4, Rules of Court, ed. of 1869.)
    The judgment was properly entered against Julius S. Bohrer; publication had, by order of the court, been substituted for personalservi.ee; and judgment was rendered in exact conformity with the eighty-first rule of the court, page 21, Rules of Court, edition of 1869:
    “ 81. If the summons has been returned ‘not to be found,’ and a day has been fixed by order of the court for the defendant’s appearance, and duly published, a judgment by default may be entered against the defendant as in case of failing to appear after personal service of the summons.” (14 Stats., 493, secs. 7, 8.)
    The interrogatories were properly served and are expressly authorized by the act of Maryland of 1795, section 5, which was in force in this District. The garnishee having appeared in proper person in answer to the writ, it was unnecessary to have him again served by the marshal; he was in court, and had full and fair notice; no fraud was practiced or attempted; true copies were left with him, and in default of his answer the court was expressly authorized to condemn the credits in his hands.
   Mr. Justice MacArthur

delivered the opinion of the court:

"We do not deem it a matter of any consequence in this case to decide whether the affidavit upon which the attachment issued in the suit at law was in conformity to the rules of the court upon that subject, or to the requirements of the statute; nor whether the proper practice was observed in regal’d to the service of interrogatories upon the garnishee; nor whether the judgments were regularly and properly entered. These are all matters of practice, in regard to which the remedy is full, adequate, and complete at Jaw. This appears to have been the belief of the attorney therein, who made a motion in that action to set aside the proceedings for these very causes, and the motion was granted by the Circuit Court; which, however, was reversed by the general term and the judgments reinstated. It is said that the decision of the general term was not upon the merits of the case, but was simply to establish a rule of practice, to wit, that it was irregular to set aside a judgment upon an ex-parie application. This, may be conceded. But if such was the case the motion could be renewed, and such we find to have been the fact; for the motion to set aside the judgment by default was again made by the garnishee by permission of the court, and that application is still pending and undetermined.

These applications afford all the remedy to which the party • is entitled, and leaves the complainant without any grounds of relief in equity.

The jurisdiction of chancery to stay proceedings at law upon a judgment, though well established, is cautiously exercised. Amere defect of jurisdiction is not sufficient. The'party must show in addition that the interference of equity is necessary to prevent injustice, which has not been brought about by the negligence or inattention of the party aggrieved. (2 Story Eq. Jur., sec. 898 ; High on Inj., sec. 85 ; Bateman v. Wilbor. 1 Sch. and Lef., 204, in addition to cases cited in brief by complainants’ counsel.) It must also clearly appear that the party complaining cannot avail himself at law of the equities relied upon to enjoin the judgment. (High on Inj., sec. 86, and cases cited in n. 2.) An application of these principles to the present case must operate to dismiss the complaint. The judgment was founded upon two promissory notes given to Supplee by one Michael J. Brown, and endorsed by Julius S. Bohrer and his wife. There is no averment in the bill denying the execution of the notes or alleging that they were not endorsed by said Julius and wife. The bill states that Julius believes that he has a good and valid defense to the action, but sets forth no explanation of the defense, or of what it consists. This general averment is not sufficient in a bill to stay a judgment rendered by a court at law. It should appear how the defense arises, so that the court may see that the complainant has been deprived of a substantial right without any fault on his own part. Both sides took testimony, and the only defense that can be discovered in the proofs is, that notice of presentment and non-payment was not served on Bohrer as endorser. This, however, is a .good defense at law, and the judgment is not binding upon him without personal service, any further than his credits in the possession of George A. Bohrer at the time of the service of the attachment are concerned; and probably the seventh section of the act of February 22, 1867,14 Stats, at Large, 403, would authorize a judgment after publication, against a defendant who cannot be found, in regard to his real and personal property within the jurisdiction of this court. The only effect of a judgment in such case would be to fix the amount, so that the garnishee need not pay any more than is due. The notes, however, were protested, which would be sufficient to sustain a judgment against the endorser unless the circumstances were such as to show fraud, which is not pretended in the case before us. The bill alleges that George A. Bohrer was garnished in an action at law against the defendant Supplee and Julius S. Bohrer, and that judgment was obtained therein by Greenbury Shaw for the sum of $2,055.36, and that he, the said George A. Bohrer, settled the same for about the sum of $600, which was composed of certain credits of the said Julius which came into bis hands subsequent to the 25th day of May, 1871. It is impossible to comprehend what right this gives the garnishee to come into a court of equity to arrest the judgment. It was an act of his own with which Supplee had no agency, and about which he was not consulted. If he voluntarily paid a debt of Supplee with the' means of Julius in his hands, how can he claim an offset here without showing some knowledge or consent on the part of Supplee ? It would be proper to set up all these matters in answering the interrogatories, and to ask the court at special term for an opportunity to do so. If his motion prevails he can answer, and if it is denied it will undoubtedly be for the reason that there are no merits in his application. Many of these circumstances were relied upon as reasons for opening the judgments in the actions at law. Over four years have elapsed since the judgments were entered, and the statutes of limitations have intervened to bar action on the notes; and as it appears that all the rights of the parties eau be litigated on the law side of the court that have not been already settled, the bill here should be dismissed; and such is the order of the court.

Wylie, J.,

concurred in the judgment, but dissented from that part of the opinion which held that a judgmeut might properly be entered against the defendant brought in only by publication.  