Dyckman & McChain v. Kernochan

New York Court of Chancery

Dyckman & McChain v. Kernochan

2 Paige Ch. 26, 1830 N.Y. LEXIS 413, 1830 N.Y. Misc. LEXIS 41

CourtNew York Court of Chancery

DecidedJanuary 28, 1830

StatusPublished

Cited by12 cases

This text of 2 Paige Ch. 26 (Dyckman & McChain v. Kernochan) is published on Counsel Stack Legal Research, covering New York Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dyckman & McChain v. Kernochan, 2 Paige Ch. 26, 1830 N.Y. LEXIS 413, 1830 N.Y. Misc. LEXIS 41 (N.Y. 1830).

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Opinion

The Chancellor.

The present complainants do not shew such an interest in the mortgaged premises as will authorize them to interfere with the decree in the former suit. Dyckman became the purchaser, pendente lite, of all the interest of G. McChain in the mortgaged premises; but it does not appear that either he or S. S. Seymour, under , whom he claimed, ever had any interest in the premises decreed to be sold. Even if an interest existed in G. McChain or his grantee, which rendered the decree irregular as against that right after the death of the former, the assignee has not pursued the proper course to correct the irregularity. This is not a bill of ■ review, and it is -not the practice of this court to permit an injunction bill to be' filed, either by parties or privies to the proceedings in a former suit, to restrain pro-; ceedings under the decree. The court can control its own process and the proceedings of its own officers, without an -original hill being filed for that purpose.

[27]*27The master went beyond his authority in allowing an injunction to restrain the defendants from carrying,into effect a decree of this court. If any order was proper, the present complainants should have applied by a petition to the Chancellor. The injunction must be dissolved, with costs.

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The Chancellor.

The present complainants do not shew such an interest in the mortgaged premises as will authorize them to interfere with the decree in the former suit. Dyckman became the purchaser, pendente lite, of all the interest of G. McChain in the mortgaged premises; but it does not appear that either he or S. S. Seymour, under , whom he claimed, ever had any interest in the premises decreed to be sold. Even if an interest existed in G. McChain or his grantee, which rendered the decree irregular as against that right after the death of the former, the assignee has not pursued the proper course to correct the irregularity. This is not a bill of ■ review, and it is -not the practice of this court to permit an injunction bill to be' filed, either by parties or privies to the proceedings in a former suit, to restrain pro-; ceedings under the decree. The court can control its own process and the proceedings of its own officers, without an -original hill being filed for that purpose.

[27]*27The master went beyond his authority in allowing an injunction to restrain the defendants from carrying,into effect a decree of this court. If any order was proper, the present complainants should have applied by a petition to the Chancellor. The injunction must be dissolved, with costs.

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Bluebook (online)

2 Paige Ch. 26, 1830 N.Y. LEXIS 413, 1830 N.Y. Misc. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dyckman-mcchain-v-kernochan-nychanct-1830.

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