Merchants' Nat. Bank of Lowell v. Leland

17 F. Cas. 59

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: July 1, 1868
• Status: Published

Opinion

BLATCHFORD. District Judge.

The several stays of proceedings granted by the state court by tbe orders of May 11, 18G8, May 30, 1868, and Jan. 21, 1869, are, in effect, nothing more than stays of the collection by execution of the judgment recovered in the state court. If it were quite clear that the undertaking of May 29, 1868, was merely an additional security for the payment of the judgment, the mode of giving defendants in this suit relief by staying the plaintiff’s proceedings herein, by an order made on a motion to that end, would be objectionable as concluding the plaintiff’s rights, without his having any means of review. But I regard it as by no means certain, that the undertaking, given as it was, and as is stated on its face, for the purpose of obtaining a stay of execution on the judgment, until the motion for a new trial in the suit could be heard and decided, and in consideration of such stay and being an absolute undertaking to pay this amount directed to be paid by the judgment, if such motion for a new trial should be denied, is not one which the plaintiff in this suit was entitled to enforce, without regard to the appeal from the judgment. That question, and the question whether this court has any right to interpolate into the undertaking any other condition than the one expressed in it, or which to make it operative, namely: that the motion for a new trial should be denied or dismissed, ought in view of the fact that the motion for a new trial was denied and that the defendants in the judgment had the benefit3of a stay in execution therein, while such motion was pending, to be raised and disposed of in a plenary suit. A suit brought on the equity side of this court by the defendants in the suit against the plaintiff therein, xo restrain or regulate this suit and thereby prevent injustice, would not be an original suit, but would only be auxiliary and supplementary to and dependent on this suit and would be maintainable without reference to the citizenship or residence of the parties to it; and process in it could be served on the plaintiff in this suit out of this district. Dunn v. Clark, 8 Pet. [33 U. S.] 1; Clark v. Matthewson, 12 Pet. [37 U. S.] 169, 172; Freeman v. Howe, 24 How. [65 U. S.] 451, 460; St. Luke’s Hospital v. Barclay [Case No. 12,241]; Logan v. Patrick, 5 Cranch [9 U. S.] 280; Dunlap v. Stetson [Case No. 4,164],

As the amount of the judgment obtained in this court and collection of which is sought to be restrained is $5,301.23, either party to such equity suit, could obtain the judgment of the highest court on the question involved. I think the proper disposition to be made of the present motion is to direct a stay of all proceedings in this suit, to collect on execution any judgment which the plaintiff may obtain herein, on condition that the defendants herein institute within thirty days here-from such an equity suit as is above suggested.

I do not feel disposed to interfere with the right of the plaintiffs to proceed to obtain a judgment in this suit if they are entitled to one as against any legal defence which may be interposed, leaving the questions which were raised and discussed on the motion to be disposed of in the equity suit to be brought.