| Ill. | Apr 22, 1890
delivered theeopinion of the Court:
This was ejectment, by appellants, against appellees. The court below held that appellants were estopped from prosecuting the suit to judgment in their behalf, by a decree in chancery in that court, between the same parties and in regard to the same subject matter, the court of chancery having jurisdiction of the subject matter, and that ruling presents the only question that it is necessary to decide upon this record.
The doctrine is of familiar application in this court, that a prior adjudication of the same subject matters between the same parties, although in a different mode of proceeding, operates as an estoppel upon the parties against subsequent litigation, at least as to all matters that were actually in controversy and decided in that adjudication. (Garrick v. Chamberlain, 97 Ill. 620" date_filed="1880-05-18" court="Ill." case_name="Garrick v. Chamberlain">97 Ill. 620; Hawley v. Simons, 102 id. 115; Hamilton v. Quimby, 46 id. 98; Hanna v. Read et al. 102 id. 596.) But it seems to be thought by counsel for appellants, that the fact that an appeal has been prosecuted from the decree destroys it as a former adjudication. This is a misapprehension. The appeal does not vacate or set aside the decree; it simply suspends its execution, and leaves it'in full force as a merger of the cause of action and a bar to its further prosecution. (Curtis v. Root, 28 Ill. 367" date_filed="1862-04-15" court="Ill." case_name="Curtis v. Root">28 Ill. 367; Oakes v. Williams, 107 id. 154; Nill v. Compret, 16 Ind. 107" date_filed="1861-05-29" court="Ind." case_name="Nill v. Comparet">16 Ind. 107; Burton v. Burton, 28 id. 342; Bank of North America v. Wheeler, 28 Conn. 518; Freeman on Judgments, sec. 328.) Moreover, the evidence shows that appellants, notwithstanding their appeal, have had that part of the decree which is in their favor, executed. They were awarded a writ of possession, which they have had issued, and, by virtue of it, they have been placed in the actual possession of the property here sued for, and it is therefore impossible that they could, in any view, recover, by a judgment in this suit, anything they do not already have without a judgment.
The judgment is affirmed.
Judgment affirmed.