Dyckman & McChain v. Kernochan — 2 Paige Ch. 26

Majority

p. 26

Dyckman and McChain vs. Kernochan and others.

Headnote

An original bill cannot be sustained either by the parties or privies to a former suit for an injunction to restrain proceedings under a decree in such suit.

An officer out of court has no right to allow an injunction to stay the proceed, ings under a decree in such a case.

Where an order to stay the proceedings in a cause pending in this court is proper the party must apply to the court upon petition.

January 28th.

The bill was filed in this cause to set aside a decree obtained by the defendants in this court against divers persons who are not parties to the suit, and to restrain the present defendants from carrying that decree into effect, upon the ground that one of the former defendants died before the decree. The master having allowed an injunction for that purpose.

B. F. Buttler, for the defendants,

now moved that the same be dissolved ; upon the ground that there was no equity in the complainants’ bill to sustain the injunction.

E. Livingston, for the complainants.

The present complainants do not shew such an interest in the mortgaged premises as will authorize them to interfere with the decree in the former suit. Dyckman became the purchaser, pendente lite, of all the interest of G. McChain in the mortgaged premises; but it does not appear that either he or S. S. Seymour, under , whom he claimed, ever had any interest in the premises decreed to be sold. Even if an interest existed in G. McChain or his grantee, which rendered the decree irregular as against that right after the death of the former, the assignee has not pursued the proper course to correct the irregularity. This is not a bill of ■ review, and it is -not the practice of this court to permit an injunction bill to be' filed, either by parties or privies to the proceedings in a former suit, to restrain pro-; ceedings under the decree. The court can control its own process and the proceedings of its own officers, without an -original hill being filed for that purpose.

p. 27

The master went beyond his authority in allowing an injunction to restrain the defendants from carrying,into effect a decree of this court. If any order was proper, the present complainants should have applied by a petition to the Chancellor. The injunction must be dissolved, with costs.