Opinion
7 Div. 158.
March 16, 1933.
Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.
Motley Motley, of Gadsden, for appellants.
The bill is wanting in equity for failure to allege a return of no property. Code 1923, § 7338, 7343; Mixon v. Dunklin, 48 Ala. 455; Turrentine v. Koopman, 124 Ala. 211, 27 So. 522. Such a bill as this must be sworn to. Lawson v. Warren, 89 Ala. 584, 8 So. 141; Sweetzer v. Buchanan, 94 Ala. 574, 10 So. 552. Equity has no jurisdiction to entertain a bill to subject a legal demand to the payment of a judgment. Goodman v. Georgia Life Ins. Co., 189 Ala. 130, 66 So. 649; Henderson v. Hall, 134 Ala. 455, 32 So. 840, 63 L.R.A. 673; Sorrell v. Vance, 102 Ala. 207, 14 So. 738; Bergan v. Jeffries, 80 Ala. 349; Wilkinson v. Wilkinson, 129 Ala. 279, 30 So. 578; Peeples v. Burns, 77 Ala. 290; Street v. Duncan, 117 Ala. 571, 23 So. 523. No action may be brought on any judgment in any court if an execution can issue from such court on such judgment. Code 1923, § 7873.
McCord McCord, of Gadsden, for appellee.
The statutory modes provided in the Code for enforcing liens are not exclusive. The lien of a recorded judgment may be enforced in equity notwithstanding the right to have execution. Code 1923, § 8935; Gurley v. Robertson, 178 Ala. 326, 59 So. 643; Griffith v. First Nat. Bank, 221 Ala. 311, 128 So. 595; Tierce v. Knox, 207 Ala. 121, 92 So. 263; Johnston v. Bates, 209 Ala. 16, 95 So. 375; McFry v. Stewart, 219 Ala. 216, 121 So. 517. The question of verification is raised for the first time on appeal. However, verification was not necessary. Montgomery Iron Works v. Capital City Ins. Co., 137 Ala. 134, 34 So. 210; Sloss-Sheffield Steel Iron Co. v. Maryland Cas. Co., 167 Ala. 557, 52 So. 751.
This is a bill by a judgment creditor with a lien arising from the registration of the judgment as authorized by section 7874 et seq. of the Code of 1923.
The equity of the bill was questioned by demurrer, taking the point that the averments of the bill show that the complainant has a complete and adequate remedy at law, and one phase of the argument is, that the bill does not aver that execution has been issued and returned nulla bona.
It has been repeatedly ruled here, "that, notwithstanding the remedy by execution afforded by the statute, 'the jurisdiction of a court of equity, without the intervention of other equitable ground, may be invoked to subject property to the lien of a recorded judgment; the statutory remedy by execution not being exclusive, but additional or cumulative only'" (Griffith et al. v. First Nat. Bank of Guntersville, 221 Ala. 311, 128 So. 595); and this jurisdiction has been extended to all liens where a statutory method for their enforcement exists. Code 1923, § 8935.
Another phase of the argument is, that under the provisions of section 7873 of the Code, the judgment cannot be made the basis of an action. That section relates to actions at law brought for the purpose of reviving or re-establishing the claim embodied in such judgment.
It is also urged that the bill is not sworn to. This point was not taken by the demurrer, and this question is not presented for decision.
The demurrers to the bill were properly overruled, and the decree will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.