46 Conn. 65 | Conn. | 1878
In January, 1872, James H. Embry, the respondent, as administrator upon the estate of R. J. Atkinson, late of the District of Columbia, deceased, instituted upon due service of process an action of assumpsit against Stanton & Palmer, the petitioners, in the Supreme Court of that district, and in March, 1873, recovered judgment for $9,185.18 damages, with costs. Upon this he has brought an action of debt in the Superior Court in New London County. To the same court Stanton & Palmer have brought this petition, in which they aver that the judgment was obtained by fraud, and ask that Embry may be perpetually restrained from enforcing it. He has filed a general demurrer, and upon this issue is joined.
The judgment was rendered by a court having jurisdiction of person and cause; it stands here upon an equal footing with a judgment rendered in our own court, with this distinction as to manner of enforcement; execution does not go from it against person or property; a suit must be instituted and a new judgment obtained thereon in our own courts; but, whenever such suit has been instituted, or an execution has been sent out upon a domestic judgment, it is within the province of a court of equity to restrain proceedings in either case alike, if it is certified that it is against equity and good conscience that they should be enforced; and this not in denial of the authority of the court rendering the judgment or of the legality of its action; the injunction is not directed against it, but is strictly in personam, to restrain persons from making courts of law instruments of wrong. Mr. Story says: “Indeed, the occasions on which an injunction may be used to stay proceedings at law are almost infinite in their nature and circumstances. In general it may be stated that in all cases where, by accident, or mistake, or fraud, or otherwise, a party has an unfair advantage in proceeding in a court of law, which must necessarily make that court an instrument of injustice, and.it is therefore against conscience that he should use that advantage, a court of equity will interfere and restrain him from using the advantage which he has thus improperly gained; and it will also generally proceed to
■ In substance the petitioners aver that they had claims upon the government for the use of .steamboats in subduing the rebellion; that they contracted with the respondent’s intestate to collect these debts for a fixed percentage upon the amount received; that he received and paid over certain sums; that after his death the respondent as administrator upon his estate presented in behalf of the same a written statement of a claim upon them for the sum of $2,29G.25, as being the amount then due from them upon the contract basis of five per cent.; that they admitted the legality of the claim so far forth as the amounts collected and the rate per cent, of compensation were concerned, but insisted that they had paid about $1,500 thereon and were indebted for no more than the balance; that in November, 1871, the respondent commenced a suit against them in this state for the full amount of the claim as stated by himself; that he withdrew the same in March, 1872, having commenced another in January, 1872, in the Supreme Court of the District of Columbia; that upon the day when this suit came to trial Stanton was unable, by reason of sickness, to leave his room in Washington; that Palmer, by reason of not having sufficient notice of the day, without fault or neglect on his part, failed to bo present at court; that delay was asked for and denied; that, in the absence of both at the trial, the respondent fraudulently
Neither in the presence of the petitioners at, nor in their absence from the court for any cause, at the day of trial, could the respondent fraudulently obtain a judgment which he could thereafter enforce against them, if they should seek the protection of a court of equity against it.
The demurrer is overruled; the respondent must answer over.
In this opinion the other judges concurred.
