McFarlane v. McFarlane, Motion No. 439.

• Decision Date: 07 October 1940
• Docket Number: Motion No. 439.
• Parties: McFARLANE v. McFARLANE.
• Court: Michigan Supreme Court

294 Mich. 648

293 N.W. 895

McFARLANE

v.McFARLANE.

Motion No. 439.

Supreme Court of Michigan.

Oct. 7, 1940.

Suit by Walter Glenn McFarlane against Ethel McFarlane to enjoin the defendant from taking any steps to enforce collection of a judgment theretofore obtained by defendant against plaintiff. An ex parte order was issued restraining defendant from taking further steps to enforce collection of the judgment. From an order denying defendant's motion to dismiss the injunction, defendant appeals.

Reversed.Appeal from Circuit Court, Wayne County, in Chancery; Sherman D. Callendar, Judge.

Argued before the Entire Bench.

Charles O. Crain, of Detroit, for appellant.

Charles Bowles, of Detroit, for appellee.

SHARPE, Justice.

February 6, 1940, plaintiff filed a bill of complaint in the circuit court of Wayne county in which it is alleged that on the 11th day of July, 1938, defendant recovered judgment against plaintiff herein in the sum of $2,092 in the circuit court of Wayne county; that said judgment was recovered under the money provision contained in a decree of divorce entered in Washtenaw county on August 16, 1929; that plaintiff herein filed a petition in bankruptcy for the discharge of all of his debts, including the above mentioned judgment; that on the 5th day of February, 1940, plaintiff received his discharge in bankruptcy; that the judgment is a debt that is dischargeable in bankruptcy; that during the pendency of the bankruptcy proceedings, the defendant herein caused to be issued a writ of garnishment on said judgment at law addressed to the Motor Products Corporation, in consequence of which the wages of plaintiff are withheld by said garnishee defendant. The bill prayed for the issuance of a temporary and permanent injunction or restraining order restraining defendant during the pendency of the suit from taking any steps or proceedings to enforce collection of the judgment. On February 6, 1940, the trial court issued an ex parte order restraining defendant from taking further steps to enforce collection of her judgment pending the suit.

February 8, 1940, the defendant through her attorney entered a special appearance for the purpose of ‘dismissing the restraining order and dismissing the bill of complaint issued in the above entitled cause.’ At the same time defendant filed a motion for the dismissal of the restraining order and bill of complaint in which it is alleged that the injunction or restraining order was issued in violation of and contrary to 3 Comp.Laws 1929, § 14352, which requires the plaintiff to file a bond equal to the full amount of the judgment which shall be first deposited by the party applying for such injunction or restraining order.

On February 9, 1940, the trial court denied defendant's motion. The reason given by the trial court in denying the motion to vacate the temporary restraining order was that plaintiff's discharge in bankruptcy discharged the judgment.

Defendant appeals after leave granted from the denial of her motion to dismiss the injunction and contends that the action instituted by plaintiff is one to stay proceedings at law and comes within the purview of 3 Comp.Laws 1929, § 14352, which reads as follows:

‘No injunction shall issue to stay proceedings at law in any personal action, after judgment, unless:

‘1. A sum of money equal to the full amount of such judgment, including costs shall be first (1st) deposited by the party applying for such injunction, or a bond in lieu thereof be given as hereinafter directed; and

‘2. Unless such party, in addition to such deposit or bond in lieu thereof, shall also execute a bond with one (1) or more sufficient sureties, to the plaintiff in such judgment, in such sum as the ciruit judge or officer allowing the injunction shall direct, conditioned for the payment to the said plaintiff, or his legal representatives, of all such damages, and costs, as may be...