Dozier v. Williams

Peyton, C. J.: W. H. Bacon, clerk of the probate court of Lee county, on the 13th day of January, A. D. 1870, issued a marriage license to one George Dozier, a minor, and son of John Dozier, under the age of twenty-one years, to celebrate the rites of matrimony between the said George Dozier and one Mollie Dozier, without having obtained the consent of the father of said minor. [608] John Dozier, on the 2d day of April, 1870, brought an action of debt in the circuit court of said county against the said W. H. Bacon, clerk as afore said," to recover the statutory penalty of one thousand dollars. And on the. 1st day of July, 1870, C. B. Williams commenced suit in said circuit court against the said W. H. Bacon for the recovery of the same statutory penalty. The said John Dozier filed his bill in the chancery court of said county against the said C. B. Williams and W. C. Bacon, alleging that said Williams and Bacon had fraudulently combined in the prosecution of said suit of Williams against Bacon in the circuit court, to defeat the recovery of the complainant in his suit for the statutory penalty, and praying for an injunction to restrain them from further proceedings in said cause, and for a decree perpetuating said injunction upon a final hearing of the cause. To this bill of complaint the defendants demurred for the want of equity in the bill, and the complainant made a motion to strike the demurrer from the files, which was overruled by the court, whereupon the cause coming on for final hearing upon the defendant’s demurrer to the bill of complaint, the court sustained the demurrer and dismissed the bill. Hence the cause is brought here by the complainant for the revision of this court. We cannot perceive how the prosecution of the suit of Williams v. Bacon can affect the right of Dozier to recover the penalty given by the statute, for which he had instituted suit against Bacon at some, time before the commencement of the suit of Williams for the same cause of action. It is a well settled doctrine, that in a popular action for a penalty given by statute, he who brings the first suit attaches a right in himself to the penalty, which no other common informer, by a subsequent suit, can [609] divest. 1 Chitty’s PI. 453; Beadleston v. Sprague, 6 Johns. 101, and Anderson v. Barry, 2 J. J. Marsh, 281. In such cases the principle is, when the prior action is pending, the subsequent writ is bad ab initio; it is wrongly sued out, as not given by the penal statute, while another action is pending for the same cause. 3 Black. Com. 160 ; Commonwealth v. Churchill, 5 Mass. 180 ; Frogg v. Long, 3 Dana, 157 ; Parker v. Colcord, 2 N. H. 36. The record will show when the suits were brought, and with the knowledge thus derived, the court would not render judgment in favor of the plaintiff in a second suit for the want of interest in the subject-matter of the suit; and even if it did, the judgment would be a nullity, and could not be set up in bar of the plaintiff’s right of recovery in the first suit, nor could it be used in any way to his prejudice. The remedy, therefore, being full, adequate and complete at law, there was no occasion for a resort to equity. For this reason, the decree of the court below must be affirmed.