McLean ex rel. Davidson v. Bindley

Mr. Justice Paxson delivered the opinion of the court, We are clearly of opinion that no appeal lies in this case. To avoid this difficulty it was agreed at bar by counsel to treat the case as if here upon a writ of error. We do not see that this helps the matter. , The order asked for, was a matter in the discretion of the court below, and it is at least doubtful whether we have any power to review it here. Were we to attempt to do so we would be without the information necessary to a proper disposition of the case. There is nothing before us but the petition and answer. The latter denies all the facts essential to sustain the equitable interference of the court. It would be a great stretch of power for any court to grant the prayer of this petition upon the facts as they are presented here. The plaintiff asks that the court below shall order a credit to be entered upon a certain judgment against him upon the ground that another judgment has-been recovered [564] against him which the plaintiff in the first judgment ought to pay, and that in the meantime execution shall be stayed upon said judgment. Yet this claim was a matter of defence which existed and might have been set up as a defence to the suit-of .McLean to use v. Bindley, 216, June 7th, 1881. When one man is sued for money which another man claims, there is always a way, if the proper means are taken at the proper time, to avoid having two judgments against him for the same debt. Here the judgment of Little et al. v. Bindley was entered upon the award of a referee, without exception or appeal. Neither McLean, nor the use plaintiff, agreed to this reference, nor does it appear that they had notice of it. That they should be now bound by it is a proposition which cannot be sustained for a moment. The petitioner has had his day in court but has failed to use it. For this neither appeal nor writ of error will help him, nor even the writ of audita querela. This rusty piece of legal ordinance is only formidable when a defence has arisen subsequent to the judgment, and as to which the defendant has had no day in court. The appeal is quashed at the costs of the appellant.