40 Ill. 89 | Ill. | 1865
We are of opinion, that the granting of the injunction in this case did not operate as a release of errors in the proceedings in the suit at law prior to and including the judgment. The bill simply prayed for an injunction to restrain the plaintiff in the judgment from further proceedings under his execution, and did not seek in any way to stay the judgment. In the case of McConnell et al. v. Ayres, 3 Scam. 210, this court drew the distinction between the granting of an injunction to stay proceedings prior to the judgment, and an injunction of the judgment itself. In that case the court said: “ Although upon the filing a bill of discovery, an injunction to stay proceedings at law should he granted, yet that would not operate as a release of errors, because, to produce that effect, there must he, 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 same distinction holds good, where, by the injunction, it is sought only to stay proceedings subsequent to the judgment, and which does not at all affect the judgment itself. As was said in the case cited, in order that the granting of an injunction shall operate as a release of errors, there must he, according to the statute, an injunction of a judgment at law. Such not being the case here, the issue will be found for the plaintiffs in error.
The defendant has leave to join in error.
