SMITH V. SOHWED. 457 �an order shouid not be made as the resuit of the reconsidera- tion of any question of pleadings or practice decided by the state court before it was deprived of jurisdiction.* �2. It is insisted that the in ju notion should be dissolved beeause there is no allegation that Heller, the plaintiff in the confessed judgment, is insolvent. It is said that, if he be solvant, the complainants herein have an ade- quate remedy at law in case he enforces his judgment, and thereby deprives them of the means of eollecting their claims against Schwed & Newhouse. The complainants have a lien by attachment upon certain property, and they aver that, by means of a fraudaient judgment, the defendant Heller and Schwed & Newhouse have conspired together to take said property, thereby depriving complainants of the means of enforcing their liens. If these allegations be true, the com- plainants are entitled to the relief sought without alleging the insolveney of Heller. They have the right to hold their liens upon the property of their debtor, and to enforce the same as against any fraudulent claims or liens attempted to be set up by third parties, whether such third parties are solvent or insolvent. They are not bound to submit to the enforcement of a fraudulent and void judgment against said property, and the defeat thereby of their attachment liens upon it, even though such judgment may be held by a person who is able to respond in damages. The holder of a fraudaient and void judgment cannot be permitted to enforce it on the ground that he may be afterwards sued at law, and a judgment for damages recovered and enforced against him. If the judg- ment was obtained by collusion, and for the purpose of de- frauding complainants, an injunction to restrain its execution, is the proper remedy, (High on Injunction, § 118; Green v.. Haskell 5 E. I. 449; Oakley v. Young, 2 Halst. Ch. 453 ;) and. I am of the opinion that in such a case the bill need not aver the insolveney of the plaintiff on the fraudulent judgment. To allow the execution of such a judgment as against inno- cent third parties, remitting them to their action for dam- ages afterwards, would not be to afford them a plain, speedy^ �*See City of Porttand v. Oregonian By. Co., ante, 32L ��� �
Page:Federal Reporter, 1st Series, Volume 6.djvu/469
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