Hopkins v. Medley , 99 Ill. 509 ( 1881 )

Mr. Justice Mulkey

delivered the opinion of the Court:

Appellees brought a petition at law to the March term, ■ 1880, of the Clay county circuit court, against appellants, for the partition of lot 9, block 20, in the town of Flora, this State. Appellants, by their attorney, appeared and filed answers to the petition, setting up certain equitable defences, which the court disallowed, and thereupon entered a judgment directing a partition of the premises, in conformity with the prayer of the petition. On appeal to this court the judgment of the circuit court was reversed and the cause remanded.

Pending the appeal in this court, appellants .filed a bill, on the equity side of the Clay county circuit court, against appellees, setting up the proceedings under the petition for partition on the law side of the court, and the same equitable matters relied upon as a defence in that proceeding, and praying for an injunction enjoining all proceedings under the judgment for partition, and for a partition of the lot in question according to the equities of the parties, as they should respectively appear. To this bill appellees filed a general demurrer, which was sustained by the court. Appellants electing to stand by their bill, a final decree was entered dismissing the same, and the appellants bring the case here by appeal, and assign for error the sustaining of the demurrer and dismissal of the bill.

It is true, as claimed, the statute expressly recognizes the distinction between partitions at law and in equity, yet it does not therefore follow that the rights of the parties may not be as fully enforced in the one proceeding as the other. The primary rights of the parties are the same, in either case, and may be enforced as effectually in one forum as the other.The only difference between the two relates to the procedure. Gage v. Lightburn et al. 93 Ill. 248.

When the partition is at law, the rules of pleading and practice which obtain in courts of law control, except so far as modified by the statute. So, the practice and pleadings in courts of equity govern when the partition ^is in equity. It is a familiar principle that courts of equity will not interpose, by injunction, to restrain the enforcement of a judgment at law, where the rights of the complainant might have been enforced and protected in the trial at law, to the same extent as in a court of equity. Where parties are sued at law, whatever rights they may have with respect to the matter in controversy, whether merely defensive, or in the nature of a counter-claim, that are equally available at law or in equity, it is their duty to set them up and insist upon their enforcement. In such case, the law will not suffer parties to lie by until a judgment has gone against them, and then permit them to go into a court of equity and obtain redress, where no accident, fraud or mistake has intervened to deprive them of their rights in the legal forum; and where, as in the present case, they make this defence at law, which is disallowed by the court, and a judgment goes against them, such judgment is conclusive upon them till reversed, and their only remedy is by an appeal to the proper court of review; and where, in such case, an appeal has been taken, they can not, pending the appeal, go into a court of equity for the enforcement of their rights. They must abide the result of the appeal.

Such being the law, it follows that the demurrer was properly sustained to appellants’ bill, and there was no error in dismissing it.

Decree affirmed.