Ross v. Buchanan

Treat, C. J. This decree must be reversed on two grounds: First. The court proceeded to dispose of the case without obtaining jurisdiction of the person of the defendant. He was not served with process; nor did he enter his appearance. He should have been brought before the court by the service of process, if a resident of the State; or by the publication of notice, if a non-resident. The fact that he was the plaintiff in the action at law, did not dispense with the necessity of bringing him into court as a defendant in the suit in chancery. Such is the uniform practice in courts of equity, and it has not been changed by our statute. The filing of the bill was the commencement of a new proceeding before another tribunal, and the complainants were bound to bring the defendant regularly into court as in other cases. The two tribunals, although presided over by the same judge, possess separate and distinct jurisdictions. Second. The bill makes no case for the interference of a court of equity. It discloses no ground for relief, of which the complainants may not equally avail themselves in the action at law. If the note was materially altered after its execution, and without their consent, they had a perfect legal defence to any action that might be brought upon it. If the fact was unknown to them when they executed the note in controversy, and if they are not thereby concluded from taking advantage of the alteration, they may still interpose the defence in the action at law. And the defence, if now available, can be as well made at law as in equity. A court of equity has not conclusive jurisdiction of the case made by the bill. If it has jurisdiction, it is but concurrent with a court of law. The rule in cases of concurrent jurisdiction is, that the tribunal which first acquires jurisdiction of the subject-matter, must proceed to a final disposition of the case. A court of equity will not assume jurisdiction where it has first been obtained by a court of law, unless there is some equitable circumstance in the case, of which the party cannot avail himself at law. See Mason v. Piggott, 11 Ill. 85, and cases there cited. The present case is not within the exception to the rule. Nor can the bill be sustained as a bill for discovery. It has none of the distinctive features of such a bill. It does not call on the defendant to make discovery of facts to aid the complainants in establishing a defence to the action at. law, but it seeks to oust the court of law of its jurisdiction, and transfer the whole case to a court of equity. The decree will be reversed, and the bill dismissed. Decree reversed and bill dismissed.