First National Bank v. Lieberman

Lore, C. J. We think the preliminary application you make hereto have the rule discharged, on the ground of want of jurisdiction, without respect to the merits, ought to be heard by us first, because it disposes of this whole matter. It has been the uniform practice, so far as we know, where a preliminary question comes up in limine which disposes of the matter, on the ground of want of jurisdiction, or for any other cause that does not go to the merits, to hear that first, and the party making the motion has the opening and closing. [370] That equity has concurrent jurisdiction here with law is clear; Sparks vs. Farmers’ Bank, 3 Del. Ch. 230; Staats vs. Herbert, 4 id. 516 ; Kersey vs. Rash, 3 id. 332. Equity having first obtained jurisdiction will oust law. Beeson vs. Beeson, 1 Harring. 394; Beeson vs. Elliott, 1 Del. Ch. 368; Central Trust Co. vs. So. Atlantic & Ohio Ry. Co., 57 Fed. Rep. 3. The right to inquire into and set aside a judgment belongs more properly to a court of equity, and especially when the plaintiff is not attempting to enforce it by execution. Townsend vs. Townsend, 5 Harring 20; Plunkett vs. Dillon, 3 Del. Ch. 509. If this case could be acted upon here and equity ousted of its jurisdiction it would not be done if it would be sending the parties out only to return again ; id. . That they would return is certain, because, if the defendant, as appears from the affidavit filed for obtaining the rule, is to rely upon the statute of limitations, it must be pleaded. Whitaker vs. Parker, 2 Harring. 416 ; Parker vs. Whitaker, 4 Harring. 527. This is virtually an effort to amend the pleadings after judgment entered, and it does not go to the real merits ; id. And if pleadable we would apply to equity to restrain defendant from pleading the statute. Lamb vs. Martin, 9 Atl. Rep. 748; Doughty vs. Doughty, 10 N. J. Eq. 347 ; Sparks vs. Farmers’ Bank, 3 Del. Ch. 305. But the plea of statute of limitations is not regarded with favor by the court, and nothing will be done to give opportunity to plead the statute. Burton vs. Waples, 3 Harring. 75 ; Waples vs. McGee, 2 Harring. 444. Whether or not the Court of Chancery has jurisdiction to inquire into the validity of the above stated judgment, the defendant therein having taken the said judgment into the Court of Chancery cannot while the proceedings which he himself instituted [371] aré still pending, go into a court of law and seek to have the court of law investigate substantially the same questions which he has made the subject matter of his bill in equity. For these reasons the present rule should be dismissed. Nields, in support of the rule. Undoubtedly the Court of Chancery has jurisdiction over the parties, but it has no jurisdiction or control over the records of this court; hence if the record of a judgment is a nullity it is here that the remedy should be sought. Cullen, J. Even if it be granted that there is no jurisdiction in Chancery, yet after a party has submitted himself to the decision of that Court can he be permitted to commence any proceedings with resp.ect to the same subject matter in any other court. Nields (resuming). The question is how far we are concluded by the proceeding in the Court of Chancery. We contend that the judgment was a nullity when it was entered. If that be the case the only result of further proceeding in the Court of Chancery would be to reach the conclusion that the remedy was here, not there; Grimshaw vs. City of Wilmington, 5 Del. Ch. 183. Lobe, C. J., announced the decision of the court. Suppose in view of the fact that the defendant in the judgment has elected to invoke his relief in the Court of Chancery we think that it is necessary for him to pursue that remedy until a decision is reached there. If he had asked that the plaintiff be restrained until an application could be made to this court, his position would be logical and this proceeding might be entertained. Not having done so, we think the case must be concluded in the Court of Chancery, as was done in Grimshaw vs. City of Wilmington, and we therefore ■discharge the rule. [372] Vandegrift, for the plaintiff, asked the Court if the costs did not fall upon -the plaintiff in the rule where the rule was discharged. Nields, for the defendant, objected, inasmuch as it was admitted that the execution had been irregularly issued after the injunction in Chancery was awarded. Lore, C. J.: Until the case is concluded in the Court of Chancery, we have no jurisdiction in this court. The plaintiff could have proceeded in Chancery, if he had seen proper, for contempt in issuing the execution, which would have carried costs. The rule here being discharged, the costs fall upon the petitioner.