OPINION OF THE COURT In cause No. 1047 in the district court of Torrance county, judgment was entered in 1923 against Williams and in favor of Kemp and wife for $750, with interest thereon from November 5, 1919, and costs of suit; amounting in all to something over $900. Williams had agreed to purchase certain real estate from Kemp and wife, and had deposited, according to agreement, $750 in the Estancia Savings Bank, to be applied as part of the purchase price and as a forfeiture. The Kemps having tendered a good title, and Williams having refused to accept *Page 595 it, cause No. 1047 was instituted, and resulted as stated.
While cause No. 1047 was pending in the district court, the parties, by agreement, removed said sum of $750 from the Estancia Savings Bank and transferred the same to the Farmers' Stockmen's Bank of Estancia, to abide the result of said suit, and to be delivered to the prevailing party.
From the judgment above mentioned, which included a provision that said sum should be by said bank paid to the Kemps, in reduction of the amount recovered, Williams appealed to this court and gave a supersedeas bond. This court affirmed the judgment and remanded the cause, with direction to the district court to enter judgment against the sureties upon Williams' supersedeas bond. Such judgment was entered, execution was taken out, and the Kemps were thereby proceeding to the collection of their judgment, when the present suit was instituted by Williams to enjoin them from doing so.
The complaint in the present suit alleges that pending the appeal in cause No. 1047, the Farmers' Stockmen's Bank was apparently in a failing condition and that the attorneys for the parties entered into a stipulation for the removal of said $750 to the First National Bank of Santa Fe, to abide the result of the appeal, but that, because of the opposition of Kemp, the deposit was not removed according to the stipulation, and was entirely lost through the failure of said Farmers' Stockmen's Bank.
A temporary injunction issued, enjoining any levy upon Williams' property for the satisfaction of the judgment. A motion to dissolve the injunction having been overruled, appellant answered, and the cause was tried. Upon specific findings and conclusions, the district court entered judgment which, in effect, required a credit of $750 to be given upon the judgment in cause No. 1047, and permitted only the balance to be collected. This judgment was entered of record October 22, 1925, and included an order allowing an appeal. A cost bond was given November 16, following. In the meantime, on November 11, upon appellee's motion, the judgment was modified in the *Page 596 district court so as to permit the enforcement of the judgment in cause No. 1047, to the extent of the costs only, and to enjoin collection, not only of the $750, but of the interest which had been awarded thereon.
It seems to have been the theory of appellee, in planning his suit, that appellants, by objecting to and preventing the removal of the money to the Santa Fe bank, incurred some additional liability, and that they should be estopped in equity from seeking to recoup from appellee a loss for which he was not, and they were, practically responsible. In fact, the principal effort of both parties seems to have been directed to fixing on each other the blame for leaving the money in the bank which became insolvent. That question seems, however, to have had little, if any, bearing on the decision. The trial court, having found all facts requested by both parties, adopted the view that the deposit of the money amounted, according to the agreement of the parties, to payment by appellee of $750, conditioned only upon a judgment being obtained and not reversed. Thus the loss of the fund was the loss of the prevailing party, since the losing party was shown not to have contributed in any manner to the loss.
Such being the theory of decision, we see no materiality in appellants' contention that no duty rested upon them to consent to a removal of the deposit or to take any precaution for its safety. Appellee recovered, not because of negligence of appellants with respect to a duty, but because he himself was not at fault.
[1, 2] Appellants contend that there is no evidence to support the finding that the money, originally deposited as a forfeiture, was redeposited to abide the result of suit No. 1047. This contenion, if having any bearing on the result, we cannot entertain. The finding is binding upon us. It was not excepted to. No contrary finding was proposed. It is not even attacked in the assignments of error.
[3] It is contended that, when appellee gave the supersedeas in cause No. 1047, the effect was to release to him the money, that he could rightfully have demanded that *Page 597 the bank turn it over to him, and that, having failed to do so, its loss properly and legally falls upon him. We need not consider what merit this contention may have in law. We do not think that, in good conscience, appellants can be heard to urge it. Such was not their theory in refusing consent to the removal of the deposit; nor was it their counsel's theory in proposing such removal. Having thus taken the position that they had some interest in and control over the deposit, they cannot now be heard to repudiate it.
[4, 5] Certain objections are made to the sufficiency of the complaint to warrant injunctive relief. The complaint was not demurred to. It was attacked by motion to dissolve the temporary injunction. Whether such motion was equivalent in this case to a demurrer, we need not consider. Some of the objections were, in their substance, clearly without merit. The objection, that conclusions of law were pleaded, is not properly raised by demurrer. Michelet v. Cole, 20 N.M. 357, 149 P. 310, Maddison v. Bryan, 31 N.M. 404, at page 426, 247 P. 275. The objection, that payment or tender of the amount "admittedly due on the said judgment in excess of the alleged deposit of $750," was not good, because no such excess appeared on the face of the complaint.
[6] One point raised by the motion to dissolve, and here urged, is that appellee had an adequate remedy at law by motion in cause No. 1047 to quash or recall the execution. Without deciding whether such remedy was available to appellee, it is clear that the right to such remedy by motion would have depended upon the showing made in the injunction case. This involved disputed questions of fact and controverted points of law, more properly to be heard and decided in a suit in equity than on a motion to quash a writ. We find it thus laid down in 23 C.J. at page 554:
"If defendant can obtain a satisfactory remedy by a simple motion to the court which issued the execution, it would be absurd to go into equity to obtain relief. Equity will not listen to such a case. Injunction will not lie where the remedy is by appeal, or supersedeas, or where defendant may have relief by affidavit of illegality, interpleader, or by trespass to try title, or by the statutory remedy of trial of the right of property. But an injunction *Page 598 has been considered an appropriate remedy where the writ has been issued beyond the territorial limits of the court's jurisdiction, or where the situation presents several complicated questions oflaw and fact."
It is said in 10 R.C.L. at page 1255:
"Following this line of division of authority, it has been stated as a general rule that the fact that redress against a void judgment might be obtained by motion in the original action constitutes no insuperable obstacle to a suit in equity for relief by injunction."
The author of the note to Luco v. Brown, 73 Cal. 3, 14 P. 366, as reported in 2 Am. St. Rep. 772, had so concluded, citing Freeman on Judgments, § 497.
[7] It is vigorously urged that no injunctive relief could properly have been awarded in the absence of a payment or tender to pay the amount which it appears was still demandable under the judgment in cause No. 1047, after crediting the $750. We have already seen that this was not a good objection to the complaint, because no such excess appeared upon its face. The question was not raised by answer. There is no finding regarding it, and none was requested. Although appellants raised the question by demurrer to the evidence, there is no error assigned upon the overruling of that demurrer. We cannot, therefore, reverse the judgment on this ground. When the question was raised as a matter of law, it was properly disposed of. In so far as it was raised as a question of fact, it has not been properly presented for review. But, as the judgment must be reversed on other grounds, it is within our power to see that inequity does not result from the fact, apparent from an examination of the record, that there has been no such payment or tender.
It is finally objected that the court erred in modifying the judgment. It is first contended that on November 11 the judgment had passed beyond the jurisdiction of the district court because of the appeal granted on October 22, followed by the giving of a cost bond on November 16, and relating back. We need not decide this question. If we were to do so, it would be necessary to take into consideration, as appellants' counsel apparently do not, chapter 15 of the Laws of 1917, which gives the district *Page 599 court control over its judgments for 30 days, and to decide whether, by taking an immediate appeal, one party can exclude the other from the right which the statute, by inference, gives him, to move for the correction or modification of a judgment, and could avoid the jurisdiction of the court to hear and pass upon such motions.
[8] The more serious objection to the modification of the judgment is one of substance. The judgment in cause No. 1047 awarded interest. The effect of the modification of the judgment in the present case is to overthrow what had been previously adjudged. Appellee argues that, since it appears that he did not owe the principal, there was nothing upon which interest could have accrued. The trouble with this theory is that it overlooks the nature of the present proceeding. It is not one to review possible error in a former judgment affirmed by this court. That judgment is final and cannot be disturbed. It was within the cognizance of equity to inquire whether the judgment had been paid in whole or in part, and to enjoin the judgment creditor from exacting a second payment. But the correctness of the former judgment in awarding interest was not open to question in this case. It seems, therefore, that the court erred in modifying the judgment.
It results that the judgment must be reversed. The cause will be remanded, with direction to the district court that, if within 30 days after receipt of our mandate, appellee shall make record showing that he has satisfied the judgment in cause No. 1047 as to the excess over $750, he shall have judgment perpetually enjoining appellants from levying the execution or from collecting such judgment. Failing to make such showing within such time, appellants should have judgment dismissing the complaint. Appellants will recover costs in this court. It is so ordered.
PARKER, C.J., and BICKLEY, J., Concur.
ON MOTION FOR REHEARING