McConnel v. Ayres

| Ill. | Dec 15, 1841

Wilson, Chief Justice,

delivered the opinion of the Court:

John Kerr obtained a judgment in the Morgan Circuit Court, against the defendants below, McConnel and Collins, and then died. Ayres, thereupon, took out letters of administration and became a party to the judgment. The cause was subsequently removed to the Sangamon Circuit Court, by a change of venue, after which the defendants applied for, and obtained, an injunction against the judgment. This injunction was afterwards dissolved, upon which the defendants have brought up the judgment rendered in the Court below, for review in this Court; and assign for error the proceedings and judgment in the Morgan Circuit Court.

The question growing out of the proceedings, and the only one proper for our adjudication, is whether the injunction to the judgment at law, is a bar to the errors that may have occurred in the proceedings at law.

The eleventh section of the “Act regulating the issuing of writs of Ne Exeat and Injunction,” ⁽¹⁾ provides that no injunction shall be granted to stay any judgment at law, for a greater sum than the complainant shall show himself equitably not bound to pay, and so much as shall be sufficient to cover costs; and every injunction, when granted, shall operate as a release of all errors in the proceedings at law prayed to be enjoined. This provision of the statute is conclusive upon the point in controversy. The language is clear and unequivocal, that the injunction shall operate as a release of all errors .in the proceedings prayed to be enjoined. It proceeds upon the ground, that the party having by his application to a court of chancery, delayed his adversary in obtaining the fruits of his judgment at law, and having voluntarily elected to rest his cause upon the principles of equity, lie shall not afterwards be allowed to take advantage of the omissions or mistakes that may have occurred in the proceedings at law, in any other way than that which he has thus chosen to adopt.

Having selected his tribunal, he must abide by its decision. He will not be allowed to pursue two remedies at the same time, and, in so doing, claim for himself the benefit of the mild and beneficent principles of equity, and at the same time apply to his adversary the harsh and rigid rules of law. Nor is it perceived that any injustice can result from this restriction of a party to the tribunal chosen by himself; for it is a well established principle of a court of chancery, that when it has once obtained jurisdiction of a cause, it will retain it for all the purposes of complete justice between the parties.

In relation to an application to a court of chancery to grant a new trial at law, or in the case of a bill of discovery, to obtain the testimony of a party, to be used in a trial at law, in which an injunction is also ¡grayed, there does not exist the inconsistency or hardship that the counsel seem to imagine. In the first case supposed, if the application is successful, and a new trial is granted, the cause is tried de novo, without regard to what may have taken place in the previous trial. And if the application should fail, the party is in no worse condition than he was before he made it. Although upon the filing a bill of discovery, an injunction to stay proceedings at law should be granted, yet that would not operate as a release of errors, because, to produce that effect, there must be, according to the statute, an injunction of a judgment at law; and where no judgment has been rendered, the proceedings in their incipient stage only are stayed.

The demurrer is sustained, and the judgment is affirmed.

Judgment affirmed.

(1) R. L. 468; Gale’s Stat. 510.