Drew v. Dwyer

The Chancellor. The bill in this cause was properly filed, and the usual injunction was regularly granted on such bill; because at that time the judgment was in full force, and all the complainant’s proceedings, in the issuing and procuring the return of the execution, were perfectly regular. And if the order of the supreme court, granting a new trial, did not necessarily vacate the judgment, which had been entered up as security, upon the application to the circuit judge for a new trial, the plea of the defendant cannot be sustained. If so, the 104 original injunction should have been retained until the final result of the new trial could be ascertained; unless the defendant chose to give security, to the satisfaction of the court, to pay whatever might be recovered against him in the action at law, together with the costs of this suit. The regular course, where a creditor’s bill has been properly filed here upon an execution returned unsatisfied, and where the defendant is after-wards let in to make a defence, in the action at law, leaving the judgment to stand as a security to the adverse party, is to stay the proceedings in this court, until the final decision of the court of law, upon the case there. The question whether the granting of the new trial, by the supreme court, necessarily vacated the judgment, which the circuit judge had permitted to be entered as security, as the condition upon which he would allow time to make a case and apply for a new trial, did not properly arise upon the application for a new injunction, founded upon the second verdict. For if an injunction was proper, before the final decision of the court upon the second trial, that was a good answer to the application to dissolve the original injunction; and the complainant should have appealed from that decision. Not having done so, he cannot apply to review the decision in this form; but he must show that something has occurred since the injunction was dissolved which entitles him to revive it. Here the affidavit, on the part of the defendant, shows that although a new verdict has been given, for about two third's the amount of the first, the circuit judge thought there was probable cause for staying the proceedings thereon, until an application for a second new trial could be made; and that he had accordingly stayed the proceedings upon that verdict. During such a stay it would not have been regular to take out a new execution, upon a judgment which had been allowed to stand as security, for the amount of the second verdict. There was not, therefore, a sufficient ground for renewing an injunction which had been previously dissolved. The order appealed from must be reversed, and the injunction must be dissolved. The costs of the defendant, in opposing 105 the motion in the court below, must abide the event of this suit; and neither party is to have costs as against the other, upon this appeal. The complainant is also to have liberty to apply to the vice chancellor to revive the injunction, if he shall be so advised, after the verdict shall have become absolute and binding upon the defendant, by the refusal of the supreme court to grant a second new trial.