Frauenthal's Appeal

Mr. Justice Mercur

delivered the opinion of the court, October 2d 1882.

This is an appeal from a decree perpetually enjoining the appellant from collecting a judgment against the appellee.

The substantial ground for relief charged in the bill is that *294 the verdict against the appellee, on -which judgment was entered, was obtained under an agreement that it should not be enforced against him. The answer of the appellant, inter alia, denies that any such agreement was made. The master found that the negotiations which led to the verdict were conducted by one counsel of each of the respective parties, openly in court where all were present; and that the appellant and others of counsel for him did not participate in the negotiations ; and that it was not understood by any of the parties to the negotiations that the judgment could be or would be collected out of the appellee ; but was taken only to lay grounds for subsequent proceedings against one Lowenstein on the replevin bond. The action in which the judgment was entered, was one of replevin in which the appellee was plaintiff, and Lowenstein and Bergold were his sureties. He further found that Lowenstein was conferred with and consented to the arrangement. Bergold the other surety was not present, and it is not claimed that he had any knowledge thereof. The counsel were not then aware that the latter was a surety. Conceding the evidence does not prove an agreement in express words, that the judgment should not be collected of the appellee, yet it is sufficient to j ustify the finding of the master and the court that such was the understanding of the parties to the arrangement. In truth this understanding appears to have been the main cause which induced the appellee to consent to the verdict. The cause then having been settled under the mutual understanding of the parties that the judgment should not be collected of the defendant therein, there was such an assent of the two minds as to give to the arrangement the binding force of an express agreement. The appellant cannot repudiate the terms under which the verdict was offered and accepted, and at the same time enjoy its benefits.

Further objection is made to the decree based on other and undisputed evidence. After judgment was entered on the verdict, a fi. fa. issued thereon against the appellee, and a levy was made on his property. Thereupon he obtained a rule to show cause why the execution should not bo stayed. The master finds that on the hearing of that rule, substantially the same facts now proved and found by him, were then shown by depositions, and the rule was discharged. After the filing of this bill, the rule was reinstated and again discharged. The question, therefore, is whether the matter was not, by the decision on the rule, res adjudicata, before the bill was filed ? The appellee claims, and the court below has held, that, after the decision on the rule adverse to the defendant in the judgment, he may again have the case heard on the same evidence, by bill in equity. The authorities bearing on this question are not in *295 harmonjn We will refer to some of them, and the reasons on which we think they rest.

In Simson v. Hart, 14 Johns. 63 , it was declared that the decision of a court of law upon a summary application to its equity, is not such a res adjudicata as to preclude chancery from examining the question. This case, and Arden v. Patterson, 5 Johns. Ch. 44 , and Bromley v. Holland, 7 Ves. 3, to the same effect, were cited in Wistar v. McManes, 4 P. F. Smith 318, and the correctness of the rule affirmed. No notice appears to have been taken of the fact, that in New York as well as in England, separate courts of chancery then existed, and the equity powers of the common law courts were confined to narrow limits. Again, in Williams v. Butcher, 1 W. N. 304, in .quashing a writ of error taken to the refusal of the court to set aside a test. fi. fa., the opinion expressly assumes the right of the defendant to afterwards proceed by audita querela. This, however, was a dictum. The question was not argued, and did not arise in the case.

In Gordinier’s Appeal, 8 Norris 528, the direct question was before us, and was the only one in the case. The plaintiff had obtained a conditional verdict in ejectment. The conditions not appearing to have been complied with, the plaintiff issued a writ of habere facias possessionem. On application of the defendant, the court stayed it, and granted a rule to show cause why the plaintiff should not be enjoined from issuing such writ. The defendant alleged he had 'substantially complied with the verdict. Depositions on each side were taken, a hearing had, and the rule was discharged. Afterwards the defendant filed his bill in equity, alleging substantially, but more at large, the same grounds of relief averred in his affidavit on which the rule to show cause had been granted. The master to whom the case was referred, reported in favor of dismissing the bill, on the ground that the question' raised was res adjudicata. The court below sustained the report in an able opinion, and decreed accordingly. On appeal therefrom to this court, the decree wras affirmed upon the opinion of the court below. A reference to that opinion shows the reason on which it was based. It is that when the defendant filed his affidavit and obtained the rule to show cause why the plaintiff should not be enjoined from issuing his writ, he appealed to the equity powers of the court and prayed for the same measure of relief that he asked for in his bill. Inasmuch, then, as the case had been fully heard on the rule, and the court then had ample power to grant the desired relief, and it had been refused, that a bill in equity could not afterwards be entertained on the same grounds. He declared the defendant had his choice of remedies by motion or bill. Having elected to proceed by motion *296 and failed, lie could not afterwards sustain a bill. If this were not so, a court of competent jurisdiction would have to hear the same matter twice. Therefore, he applied the rule that the judgment or decree of a court of justice upon a legal or equitable issue, within its jurisdiction, is binding and conclusive upon all other courts of concurrent power.

If we adhere to the last decision of this court, it is fatal to the bill. Why shall we not so adhere ? Under our system of jurisprudence the courts of common pleas have full equity powers. Many of them may be invoked either by motion and rule or by bill. In those cases where it is optional for a party to elect in which manner he will apply for the exercise of those equitable powers, and he does so elect, and the court, with full power to grant the desired relief, after full hearing, refuses it, _ why shall not the decision be conclusive? The fact that he' selects a form of proceeding which a higher court cannot review, constitutes no reason why he shall not be concluded by the decision. Whether the application to enjoin against issuing execution be by motion and rule, or by bill, the relief is sought through the exercise of the equitable powers of the court alone, and not through the intervention of a jury.

The appellee in this case made his election. lie submitted his alleged grievance to a court of competent jurisdiction. He had his day in court. The identical matter was adjudged against him. Interest reipxibliem ut sit finis liiium

Decree reversed and bill dismissed at the costs of the appellee.