Lewis v. Morton

22 Ky. 138, 6 T.B. Mon. 138, 1827 Ky. LEXIS 249

Opinion

Chief Justice Bibb

delivered the Opinion of the Court.

Lewis, by his petition and bill, set forth causes why he had been prevented from defending a suit in chancery brought by Morton against him, and prayed that the decree might be opened, and his defence permitted, denying the justice of the claim set up by Morton in his bill; he made the bill and proceedings and decree in Morton’s case against him a part of this bill. Having obtained an order staying the execution of that decree, without answer filed by Morton, the order obtained by Lewis for staying the execution of tiie decree against, him was discharged, and his injunction dissolved. Upon application to two of the judges of this court, they were of opinion that the injunction was improperly dissolved, and ordered it to be reinstated; the case came on to be heard, and the court again dissolved the injunction, and dismissed the bill with damages and costs.

It is useless to go into the details of this case. The principal decree sought to be opened, and the whole record of the proceedings were made part of Lewis’ petition and bill. It is the same case which was reversed at the last term of this court, upon a writ of error prosecuted by Lewis, to the decree referred to in this case. This is but an incident. Morton’s bill on which his decree was obtained, was without equity, and as it is already reversed, it is useless in this cause to go into it again.

The question, therefore, about the excuse of Lewis for not defending, has become of no importance, since the reversal of the principal decree, and the dismission of Morton’s bill; neither could it be proper for the court to decree against Lewis damaages upon a claim set up by Morton without justice or equity; nor was it proper to let loose a decree, founded on a bill without equity on its face; nor were any damages proper to be decreed upon this dissolution. (Head vs. Perry, 1 Mon. 257.)

Chápese, for plaintiff.

It is therefore ordered and decreed, that the-cree of the circuit court be reversed and annulled, and the cause be remanded with directions to that court, to dismiss the parties to this case, because the reversal of the decree alluded to, has rendered any farther order or decree, upon the matters of this bill and petition wholly useless; and that each party pay his own costs in that court expended.

An cl it is farther ordered and decreed that the defendant pay the complainant his costs in this court expanded.