Jenks v. Smith

Dubeee, C. J. This is a-suit in equity for partition and account. It comes before us now on a motion, tbe ground and object of wbicb may be stated tbus : On August 25, 1881, tbe defendants in tbis suit commenced an action of account against tbe complainant William Jenks, and tbe complainant Royal Lee, executor of tbe will of Pardon Jenks, deceased, to bold them to an account, on tbe charge that tbe said William and Pardon, and, since tbe decease of said Pardon, tbe said Royal Lee as bis executor, bad bad tbe care and management of certain lands and water rights and privileges, belonging to the parties, and bad received more than their proportion of tbe rents, issues, and profits thereof, and bad refused to account therefor when requested. ■ Pending said action tbe defendants therein and others commenced tbis suit in equity for a partition of tbe common rights and estates, and for an account covering tbe matters involved in tbe action at law, and for an injunction to restrain tbe suit at law. Tbe defendants answering joined in tbe prayer for tbe account. Thereupon a decree was entered referring tbe cause to a master for him, among other things, to take tbe account. After tbe bearing under tbis decree was begun, tbe defendants sued out a writ of mesne process in tbe action at law, and attached thereon by garnishment certain moneys belonging to said William Jenks and tbe said Royal Lee as executor. Tbe motion is that tbe defendants may be restrained from further prosecuting tbe action at law and be ordered to discharge tbe attachment. It is the practice in chancery, where a party is suing for the same matter both at law and in equity, to compel him to elect in which court be will proceed. Story’s Eq. Juris. § 889; Rogers v. Vosburgh, 4 Johns. Ch. 84. Where a party so suing has obtained a decree in equity for an account, be will be deemed to have made bis election without any order therefor, and will not be permitted *636 afterwards to proceed at law. Mocher v. Reed, 1 Ball & B. 318; Wilson v. Wetherherd, 1 Meriv. 406; Conover v. Conover, 1 N. J. Eq. 403; Wedderburn v. Wedderburn, 2 Beav. 208. “ When a decree bas been pronounced,” say tbe court, in Mocher v. Reed, “ and tbe party obtains tbe relief he prayed, it is a contempt of court to proceed at law.” In Quidnick Company v. Chaffee, 13 R. I. 367, 389, this court decided that after a complainant has carried his suit in equity to a decree, the court will presume that he has made his election, and will stay suits at law for the same matter and order the discharge of attachments in them. The case does not differ in this respect from the case at bar, except that in the case at bar it is the defendants, and not the complainants, who are proceeding at law. But the suit here is for an account, the defendants joined in the prayer for the account, and the decree has been entered accordingly. In such a suit after a decree all the parties are actors, and the court will not permit a complainant to dismiss his own bill unless upon consent. 1 Daniell Chanc. Plead. & Prae. *793. In such a suit, if a balance be found for the defendant, he is entitled to a decree for it against the complainant. If the complainant dies after decree for an account, the defendant can revive the suit against the personal representatives of the complainant, and if he himself dies, his personal representative may revive it. 1 Story’s Eq. Juris. § 522. We think, therefore, that at least after a decree to account in a suit for an account, the same presumption of election which applies to the complainant must be held to apply to the defendant praying for the account, and the same rule must be enforced. Clearly, since both suits cannot go on, the suit in equity, in which both parties have joined in obtaining the interlocutory decree for an account, is the one which is entitled to proceed. James M. Ripley John F. Lonsdale, for complainants. Hopkins Potter, for respondents. The defendants will therefore be required to discharge the attachment. Order accordingly.