Citation Numbers： 38 How. Pr. 31
Judges： Blatchford
Filed Date： 7/1/1869
Status： Precedential
Modified Date： 2/17/2022
The several stays of proceedings granted by the state court, by the orders of May 11, 1868, May 30, 1868, and January 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 the 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 are entitled to enforce at once, without regard to the appeal from the judment. 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 benefit of 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, to restrain or regulate this suit and thereby prevent injustice, would not be an original suit, but would only be auxiliary and supplementary
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 the of the highest court in 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 herefrom 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.