44 Ill. App. 139 | Ill. App. Ct. | 1892
Under the circumstances existing when the order of dismissal was made, we do not think it an order to which appellee was entitled. That suit was begun prior to the suing out of the writ of error.
True it is that the attachment suit, the judgment in which was reversed by this court, and that commenced after such reversal, are for one and the same cause of action and against the same party, and that by the writ of error, taken by appellants, they seek to keep alive such suit and eventually to obtain a judgment therein; yet it does not follow that the attachment brought after the reversal of such judgment and prior to the suipg out of the writ of error must be dismissed, or that appellant must elect which of the two proceedings it will abandon. What would have been the result had appellee moved in the Supreme Court for a stay or dismissal of that suit, or had there pleaded in abatement the pendency of this attachment, is not a matter for our consideration. It is sufficient in this proceeding for us to say that the case of Hallman v. Buckmaster, 3 Gilm. 498, and the case of McJilton v. Love, 13 Ill. 486, seem to indicate that the proper practice in such a case as this is to apply for a stay of proceedings until the writ of error has been disposed of.
In reversing the order of the court below, dismissing the attachment suit, we leave out of consideration the reception by appellants of a large sum of money on the sale of personal property levied on by them. Such reception may be a defense partial or complete to appellant’s claim, or show that the maintenance of this suit is inconsistent with the defense of the action of trespass brought by appellees against them, but upon motion of this kind to compel an election or stay, the merits of the suit are not considered. The position of the party moving to dismiss or stay is, admitting pro Tiac vice that the plaintiff has a good cause of action, he is nevertheless not now entitled to prosecute this proceeding.
The order of the Circuit Court dismissing the suit is reversed and the cause remanded.
Reversed a/nd remamded.