#### HYDE, Appellant, v. GEARHART et al, Respondents.

(168 N. W. 719).

(File No. 4333.

Opinion filed September 3, 1918.)

Appeals — Dismissal of Appeal — Order Enjoining Execution, No Appeal — Order Dissolving Injunction re Judgment Lienors, Appeal Therefrom — Order, Appeal, Futility of.

Where in a suit involving mutual set-offs of judgments, trial court denied a motion of a judgment creditor and of an assignee of the judgment, for an order dissolving a temporary injunction against issuance of execution thereon, and granted a restraining order pending the suit, no appeal having been taken therefrom; and upon said hearing having also granted a motion of certain parties defendants claiming an attorney’s lien upon said judgment, and dissolving the preliminary restraining order as to them, from which order an appeal was taken to Supreme Court; held, that the order appealed from was an idle act, as was the taking of the appeal therefrom; since the temporary injunction stayed execution of the judgment, the order appealed from abating none of the force thereat; the- order appealed from leaving said lienors (who-need not have been made defendants) in the same position, as regarded the stay, as they would have been in had they not been made defendants; and while issuance of execution was an act performable by attorneys, notice to them of the temporary injunction was necessary in order to make it effective, since it would be issued by clerk of courts.

Appeal from Circuit Court, Hughes 'County. Hon. John. F. Hughes, Judge.

Action by Charles L. Hyde, against Napoleon B. Gearhart, Loring E. Gaffy, 'Louis E. Stephens and others to- compel set-of pro tanto of mutual judgments. From an order granting motion of defendants Gaffy & Stephens to dismiss a restraining -order as to them, plaintiff appeals.

Affirmed-.

*78*P. W: Dougherty,*and *John A. Holmes,*for Appellant.

*Gaffy, Stephens & McNornee,*for Respondents.

Respondents cited:

Wood' v. Bangs., 46 North Western, 586; State ex rel. Crammer, v. Thorsom, 68 North1 Western, 202.

GATES, J.

This, action was 'brought to compel the set-off, pro tanto, of mutual judgments. The complaint alleged1 the rendition of two. judgments ini this plaintiff’s farrar against Napoleon B. Gearhart, the rendition of a judgment against this plaintiff in favor of said Gearhart for something over $500 :in excess of the •amount of the two, the assignment of the last-mientiomed judgment to Nettie D. Gearhart and by her to the 'First National Bank of Pomeroy, Iowa, and the insolvency of Napoleon B. ¡Gearhart. All of the above named were made parties, defendant in this action, and also Lori-ng E. Gaffy, Louis L. Stephens, and Tom O. Mc-Namee. It was further allegad) that .each of the defendants had or claimed) some interest -in or lien upon the last-mentioned judgment. A temporary restraining order was issued restraining the issuance of execution t-hereon. U-po-n the return -day the defendants Gear-hart and the bank, appearing b)^ Gaffy, Stephens- & MtNamee, •attorneys, jointly moved the dismissal of the restraining ordler for that the complaint did' not state a cause of action and for that no affidavit was submitted ¡on behalf of the restraining order. The defendants Gaffy and Stephens', appearing by the same attorneys, jointly medie a ¡similar motion accompanied b}'- an affidavit .in which they asserted an attorney's lien ini the sum of $1,147.80 upon said last-mentioned judgment. The defendant ¡McNamee filed a disclaimer. The trial court denied' the motion of the defend'ants. Gearhart and the bank and granted a temporary injunction restraining .them, “-and each of them and each of their attorneys, •agents and solicitors and -all persons' ¡acting in aid ¡or assistance of them * * * penidling the final determination of this suit and until ¡the further order of this ¡court in the premises from talcing any steps or proceedings of any nature whatsoever to collect the judgment.” No appeal wias taken from this order, ¡although- entered more than six months ago. On the same day the trial court granted the motion of defendants Gaffy and Stephens and entered' an order dissolving and ¡discharging the preliminary restraining order-*79as to them. It is from' this latter order that the plaintiff -has appealed! to this'court.

The granting of this order was an .idle act. The taking of this appeal -was just as futile. The temporary injunction prevents the issuance of am execution1 on the judlgmentyamd the order appealed1 from -abates- no particle of the force and effect of the temporary injunction. It is apparent that this- is- so: for the reason that the making of Gaffy and ,Stephens- parties defendant .in- this action was unnecessary in order to bind) them, by the restraining order or temporary injunction. The- effect of the order appealed ■from (so far as the stay- of execution is concerned) is to. leave them in the' same position they would have- been in had they not been made parties defendant. It is entirely clear that in such case the temporary injunction- wo-uld prevent the issuance of execution. Granting that, if the- issuance of execution was an act t-o be performed1 by attorneys, notice to them of the temporary injunction would be required in- order to make the injunction effective, but an execution i® not issued by attorneys. It ;is .issued' by the clerk of -court. The moment the temporary injunction- order, -was filed in his office, that moment the stay of- execution became complete. No execution -could lawfully be 'issued!' upon the judgment by the clerk “until the further order' of the court.”

Appellant cannot possibly be aggrieved! by the order -appealed from. It i-s -in- no wise prejudicial to him and cannot affect any of this substantial rights-. Therefore, without determining whether it was right or wrong, it is affirmed because uonpcejudicial to- appellant.