Wynn v. Wilson

30 F. Cas. 751, 1855 U.S. App. LEXIS 919

• Court: U.S. Circuit Court for the District of Arkansas
• Decided: March 26, 1855
• Status: Published

Opinion

DANIEL, Circuit Justice.

1. By the act of congress of 1793, § 5 (1 Stat. 334), it is declared that no writ of injunction shall be granted in any case, without notice to the adverse party or to his attorney, of the time and place of suing for the same. And this provision has been sanctioned as long since as the case of New York v. Connecticut, 4 Dali. [4 U. S.] 1, and applied to injunctions granted by the supreme court, as well as to those that may be granted by a single judge.

2. Again, it is a rule perhaps without an exception, that whenever a defendant, in a suit at law, is possessed of a defence of which he may avail himself in the action, he cannot, after waiving or omitting that de-fence, invoke the aid of a court of equity for relief, upon the same ground, nor upon any others which he might have asserted at law.

3. It is believed that mere negligence of an attorney, unaccompanied by fraudulent combination or connivance, has never been deemed a sufficient reason for equitable interposition to arrest a judgment at law. If the judgment in question was in truth obtained in behalf of a man who was dead at the time, that judgment is merely void, and may be quashed by summary proceedings, upon notice and proofs, by which all acts in virtue of a judgment ipso facto void, would fall to the ground. If the death of the plaintiff at law was known to his attorney, or the officer of the court when entering that judgment, or when suing out process therefor, such acts would constitute an abuse of the authority of the court such as should be strongly disapproved and promptly set aside. They could create no rights in the plaintiff’s representative, nor in any person pretending to claim under the judgment.

Upon the principles herein stated, the injunction prayed for in this case, as made by the bill, must be denied.

The application was renewed at the April term of the circuit court. 1S55. before the same judge. RINGO, District Judge, having been of counsel did not sit. and notice of the application was waived. It was now stated and shown in the bill that the assignment of the notes to the plaintiff, in the suit at law, was fraudulent, and done to enable the said James H. Wilson to cheat and defraud complainant; and the particular facts constituting the fraud were set out and specified. Upon the second application the injunction was granted, bond and security given and approved, and a writ of injunction ordered to issue, which was done accordingly.