| Ill. App. Ct. | Oct 11, 1881
J. — The motion filed by the defendant, Ennor, to quash the ca. sa. and stay the issuing of any process for the collection of the judgment, alleges three reasons why such motion should be granted:
First: that the original execution and the return thereon was not a sufficient foundation upon which to base the capias.
Second: the affidavit for the capias was not sufficient in law to justify the issuing of the writ.
The third cause is the same as recited by the court in its order granting the relief.
We have examined the execution and affidavit, and do not perceive any substantial defects therein. They appear to set forth all that is required by the statute preliminary to the issuing of a capias ad satisfaciendum. The only remaining point for our consideration is whether the court erred in entering the order quashing the capias and prohibiting any further proceedings under the judgment until the railroad company should bring into court the bonds and stock, which was the consideration of the promise of Ennor to pay the money named in the judgment. The court finds that the contract upon which said judgment was based was a mutual and conditional one, and that at the time of the rendition of said judgment the plaintiff therein was not able and willing to comply "with said contract and deliver the bonds and stock, and. has not been at any time since the rendition of said judgment.
If said contract was of the character found by the court, and the railroad company could not comply with its terms upon its part, it would seem that the defendant had a full and complete defense to the suit upon its merits, and the record showing that a judgment for the plaintiff could not have been rendered without deciding this very question, as it lies at the foundation of plaintiff’s right to recover, and the decision being upon the merits by a court of competent jurisdiction, that judgment must be considered as having settled that matter as to all future actions or proceedings between the parties. Whether' the court committed an error in its findings of the facts, or in applying the law to the facts, cannot matter, as it is the judgment itself that concludes the parties, and the matter having passed in rem judioatum, so long as such decision stands un reversed or unannulled, the parties are barred from reviving it.
The question whether the plaintiff had so far performed its part of the contract, as to entitle it to a recovery, was clearly within the scope of the record and directly in issue, and the judgment in favor of the plaintiff is a solemn adjudication that the plaintiff had so performed, and that the. defendant had not.
If this finding and judgment were erroneous, the defendant had his remedy by appeal or writ of error, when he could have had the same reviewed, and such an error, if any, corrected, but not seeing proper to attack the same directly, he is estopped from doing so in a collateral and a summary proceeding. -
It is urged, however, that the court rendering the judgment, exercises an equitable jurisdiction over its own process, and will not allow it to be used for inequitable purposes. A proper case being made, there is no doubt of the power of the court to control its own' process, either to prevent its issue, to stay proceedings under it, or to compel its return unexecuted.
This principle, it is believed, has never been extended to a case where the equity sought to be invoked existed prior to the rendition of the judgment, and could have been made available in the original proceeding.
If the judgment itself is inequitable, and is not the result of the party’s own neglect, his remedy is in a court of equity 5 but it cannot be held as the law that a court, by this summary proceeding, can sit in review upon its own solemn findings and judgments, refuse its process to make such judgment effectual, because the court, in rendering such judgment, committed error. Suppose suit is brought upon a note that has been paid, and upon trial, judgment is rendered upon the merits for the plaintiff; will the court, upon the motion of defendant to stay execution, go behind the judgment and re-investigate the facts that have been once settled, and refuse final process in the cause? A suit is brought for the purchase-price of land sold under a contract to deliver a deed when the payments are made and the plaintiff recovers; can the court, upon a motion, refuse its process for the collection of the sum adjudged to be due, because the proof heard upon the motion shows that the plaintiff did not, before suit brought, tender a deed in compliance with his contract, and still refuses and neglects so to do? It would seem not. The judgment for the plaintiff is an adjudication that the amount is due and payable, and parol evidence cannot be heard in a collateral proceeding at law to show that the plaintiff is not entitled to the thing adjudged. The judgment upon which the ca. sa. was issued in this case is proof conclusive that at that time the plaintiff was entitled to have and receive of the defendant the amount adjudged to him, and the court ordered execution for its collection; and it seems to us that unless the judgment has been paid, released, or otherwise satisfied, the plaintiff, under the law, is still entitled to have all legal process for its collection. We fail to find in the record that anything has occurred since the rendition of the judgment that tends to affect, impair, or destroy its validity, or that makes it inequitable to enforce it according to the terms of the recoveiy. The only reason alleged against its collection is one that ex- ' isted prior to its rendition, and could have been availed of by the defendant in bar of a recovery. At least there is nothing shown in the record why such defense was not made, and we might say, no competent proof appears, negativing the presumption that it was made and adjudged against the defendant. The remarks of the court in Voorhees v. Bank of the United States, 10 Pet. 449, we think applicable to this case. So long as this judgment remains in force, it is in itself evidence of the right of the plaintiff to the thing adjudged, and gives him the right to process to execute the judgment; the errors of the court, however apparent, can be, examined only by an appellate power.”
The cases cited by appellee in support of the position that a court will recall and quash final process where it is inequitable to enforce it, do not go beyond the recognition of equities arising after judgment. If the defendant had a good defense to the action unknown to him at the time, and he could not have ascertained it by the exercise of reasonable diligence, or if known to him and without laches, negligence or default upon his part or those representing him, he was prevented from making his defense to the action by fraud, mistake, accident, or surprise, then his remedy is in a court of equity, and not by motion, as such matters are not taken cognizance of and adjtreated upon in this summary manner after the term has passed at which the judgment was entered. In our opinion, the facts appearing in this record do not justify the order entered by the court below, and we must reverse the order and remand the cause.
Reversed and remanded.