| Ill. | Dec 15, 1848
The Opinion of the Court was delivered by
In pursuance of a mandate from this Court, the Circuit Court of Pike county entered a decree in the case of the present relator against Thomas Manchester and others, reported in 4 Gilman, 511, directing that the defendants, or some of them, within ninety days, should pay to the complainant the sum of $2617-93, and interest; and in default thereof, the present defendant, who was thereby appointed a Commissioner for that purpose, should sell the lands an the .decree mentioned, and with the proceeds pay that amount. Afterwards, McConnell, one of the defendants in that bill, as to whom it was taken as confessed, filed his bill in that Court, showing that McKee had transferred his interests under that decree to John Mathews, Thomas Hollowbush and Augustus R. Burbank; that he had offered to pay McKee the amount of the decree, who refused to receive it for the reason that he had assigned as above stated; that he had then applied to D. A. Smith, solicitor for the assignees, by whom he was informed that they would not receive the money, but denied the right of the complainant to pay the same, and insisted upon a sale of the premises. McConnell claims to-be the owner of the land, and avers that the assignees of McKee aré indebted to him in a much larger sum than the amount of the decree, for work, and timber taken from the land, and otherwise on account of the enjoyment of the premises, in the possession of which they had been since 183 t, and that they were insolvent. The bill prays for an injunction, and that the complainant’s claim against the assignee may be set off against the amount due them under the decree. An injunction was issued by the Circuit Court, restraining the Commissioner from going on with a sale of the lands. That bill has not been brought to a hearing, nor has the injunction been dissolved. A motion was made in the Circuit Court in the name of McKee, the complainantin the first bill, for an order on the .Commissioner to go on and sell the property, notwithstanding the injunction, which was denied. This application is now made here, for a mandamus against the Commissioner, commanding him to proceed with the sale, or against the Circuit Court commanding it to make such an order as was applied for.
As that decree in the Circuit Court was entered in pursuance of a mandate .from this Court, it could not be appealed from, but was final and conclusive upon all of the parties as they we.re adjudicated upon and determined by this Court. In effect, .the decree was the same as if it had been entered up here; and this Court would, by mandamus, compel the the Circuit Court not only to enter such decree as it had directed, but to enforce and execute it, nor could it's execution be interfered with or obstructed, either by that or any other Court, any more than a- direct decree of this Court. It was, in fact, a decree of this- Court promulgated through the Circuit Court.
The main question in this case is one of jurisdiction-. Could the Court of Chancery, under any circumstances, restrain, by injunction, the Commissioner from making the sale contemplated by the decree? If it could restrain that sale-under any given circumstances, then its jurisdiction to control the acts of the Commissioner in that respect, is established. That such jurisdiction existed, we entertain no-doubt. The order of sale was only conditional. If the money was paid by any of the defendants, then the demand-of the complainant was satisfied* and the decree accomplished, and no authority for the sale remained. Indeed, many circumstances, subsequent to the decree, might have arisen which would have rendered a sale improper and unjust. The duties and responsibilities of the Commissioner under the decree were very similar to those of the sheriff with an execution at law, and nothing is more common than to restrain him, by injunction, from proceeding in a particular way or to a certain extent; and it would be the same whether the execution issued from this or from a Circuit Court. In that case, as well as in this, the object might be accomplished in most instances by a motion in the original cause; yet, sometimes, the interest of other persons might intervene, or new rights or equities arise, which would render it necessary to resort to a Court of Chancery to have them fully examined and duly protected. So long as the improper action of the Commissioner under the decree might be controlled by injunction, he could not treat it as a nullity, because it might have been imprudently issued. He had no right to inquire whether a proper case was made for the injunction or not. Being subject to the jurisdiction and control of the Court, he was bound to obey its order without further inquiry.
As it was the duty of the Commissioner to obey the injunction, we cannot compel him to- violate it.. A mandamus cam only be issued to compel a party to act when it was his duty to act without it. It confers upon him no new authority. We cannot look into the injunction bill to see whether ai proper case was made or not. The orders made in that cause are not before us for revision. We can neither reverse nor affirm them now. They must continue in force till they aré vacated by the Circuit Court, or are reversed on appeal or writ of error, if the Court had any authority to make them. We have already seen that a case might have been, made authorizing the injunction, and that we cannot now inquire whether an error was- committed in awarding it. The-Circuit Court could not inquire into the rights of the parties existing'antecedent to-'thetime when that suit was set for hearing and-which might have been presented there, for those were-irrevocably fixed by the decision of this Court; but rights accruing" subsequently, which, of course, could not have been passed upon or presented in the former suit, were proper for its consideration, and an injunction restraining the sale may have been necessary for the protection of those rights. In this, the process of injunction was no more liable to abuse than in matay other cases.
The applicatiomfor ^mandamus must be denied with costs-against the relator:
•Application denied.