Buell v. Cross , 4 Ohio 298 ( 1829 )

By the Court :

The plaintiff, by his own showing, has a judgment now subsisting against the executrix of Stanley, and no good reason is assigned why that judgment does not embrace his rights. The doctrine, recognized by this court, in 3 Ohio, 305, is applicable to this caso: that however summary, or however irregular, the judgment of a competent tribunal can not be treated as a nullity. There is an explicit and formal judgment, and although the proceedings upon which it was predicated, may be unknown to our jurisprudence, still, as in all other judgments, they are not open for inquiry, except i-n a regular mode of re-inv.estigation, on writ of error or certiorari. The remedy of the plaintiff is purely at law; this-remedy he has attempted by the scire facias. If he properly failed, his rights are at an end; if improperly, his remedy was by error or appeal.

A person having an option of law or equity, after selecting one tribunal, can not resort to the other. 1 Ohio, 435 ; 2 Ohio, 268; 3 Johns. Ch. 356.

It is unnecessary to determine the question argued by counsel, whether, when the legal remedy against a surety is extinct, a court of equity will enforce the obligation. This court would hesitate, before they adopted the doctrines contained in the cases cited from 2 Wash. 136; 2 Hen. & Munf. 124.

Bill dismissed.