Gainty v. Russell

40 Conn. 450 | Conn. | 1873

Phelps, J.

The defendant’s motion for a new trial rests wholly on the refusal of the Court of Common Pleas to open the cause several days after the trial had been closed, but before judgment was rendered, and admit the testimony of an additional witness offered by the defendant.

The finding shows that at the time of the trial the witness was in Branford, where the defendant resides, that it was well known to the defendant where he was and what he would testify, and that no measures were taken by subpoena or otherwise to procure his attendance.

It was entirely discretionary with the court whether the application of the defendant should be granted, and that discretion is not a subject of review in this court; and if it was, an examination of the facts found could not fail to satisfy us that it was properly exercised.

We are also satisfied that the motion in error discloses nothing for which the decree of the Court of Common Pleas should be reversed. The first error specially assigned is that the court mistook the law in finding that the petitioner was without adequate legal remedy.

The petition is brought to enjoin the defendant against what is alleged to be the threatened wrongful use of a judgment and execution improperly and fraudulently obtained, and among other averments contains the usual and generally proper one of a want of adequate remedy at law. In its decree the court in general terms finds true the facts alleged in the petition, and issue is not otherwise found on that averment. The allegations in the bill, if true, clearly laid the foundation for equitable relief, and the remedy sought was one which a court of chancery would make haste to apply, and the question whether the law would afford relief after the judgment had been enforced by the levy of an execution is immaterial. A court of chancery had undoubted jurisdiction, and whether a court of law also had is not important.- A court of chancery whose jurisdiction is not disputed, and is first invoked, can not be ousted of it by a subsequent proceeding in a qourt of law for the reason that the latter tribunal has also jurisdiction.

It is also claimed that the court erred in finding that the injunction ought to be made permanent to nullify a void judgment. In looking carefully through the record we discover nothing which authorizes this claim. The injunction is made perpetual to restrain the defendant from the improper use of legal process claimed to have been wrongfully and fraudulently obtained, and not to annul the process itself. It does not affect the process, but enjoins the defendant from making an inequitable use of it.

Several other unimportant errors are assigned which we need not consider.

A new trial is not advised, and the judgment is affirmed.

In this opinion the other judges concurred.