
    S. S. Lindsay v. A. J. Fuqua.
    Practice — Petition in Equity — Return Nulla Bona.
    Where there has been no return of nulla bona a plaintiff cannot come into equity and attempt to subject defendant’s property to his judgment, and where he has had a return on his execution showing the execution to be satisfied in full, he cannot have another execution until he has procured the former return to be set aside.
    APPEAL FROM CHRISTIAN CIRCUIT COURT.
    February 20, 1878.
   Opinion by

Judge Lindsay:

Appellant’s petition shows that he has recovered a judgment at law for the full sum he claims to be due and owing by appellee. He had no return of “No property found.” Upon the contrary, his .execution was by his own order returned “satisfied in full.” His petition shows that the appellee, at the time this action was instituted, was the owner of large property, real and personal. He could not, for the want of a return of nulla bona, come into equity under the provisions of Sec. 474, Civil Code of Practice, and he shows that appellee has abundant property to satisfy his judgment by seizure and sale under execution, and therefore that he has no pretext for resorting to' a court of equity upon any other ground.

The difficulty in his way is that he has had his execution returned satisfied. If his debt has not really been paid, and this return was procured by fraud, his remedy is to have it set aside so that execution may issue for the balance due on his common-law judgment.

He cannot have this relief in a court of equity. His proceeding must be on the ordinary side of the docket, as the judge, sitting as a chancellor, has no power to amend or correct the process of the common-law court, nor to set aside or amend the returns made thereon by the officers of that court. But appellant does not seek to have the return set aside. He asks to have the execution notwithstanding the return. This course is inadmissible.

Champlin, McPherson, Ritter & Payne, for appellant.

A. J. & D. Tames, E. P. Campbell, H. A. Phelps & Son, for appellee.

Judgment affirmed.  