The record-union., 1897-12-08

his work on Equity Jurisprudence. Sec
ton 1861, is as follows:
Where a court of law can do as iuil
justice to the parties and to the mat
ter in dispute, as can be done in equity,
court of equity will not stay proceed
ings at law. Equity will not restrain
legal action or judgment where the
controversy would be decided by the
court Of equity upon a ground equally
available at law, unless the party in
voking the aid Of equity can show some
special equitable feature or ground cf
relief; and in the case assured, this
special feature or ground musy nee
eSSarily be something connected with
the mode of trying and deciding the
legal action, and not with the cause
of action or the defense themselves. 1t
is not such special equitable ground
of interference that the party has, by
his own act or omission. failed to ef-
fectually avail himself of a valid de-
fense at law. nor that the court of Jaw
has decided question of law or fact
erroneously.'
Again the same author says: +"
1t was a settled doctrine Of the
equitable jurisdiction-ani is still rhe
subsisting doctrine except where it has
been modified or abrogated by statute,
or has become obsolete through the en-
! larged powers of the law courts to
grant new trials-that where the legal
/ Judgment was obtained or entered
through fraud, mistake or accident, or
where the defendant in the action, hav-
| ing a valid legal defense on the merits,
was prevented in any manner from
maintaining it, by fraud, mistake or ac-
! cident, and there had been no negli-
gence, laches or other fault on his part,
or on the part of his agents. then
court of equity will interfere at his suit
and restrain proceedings on a judg-
ment which cannot be conscientiously
enforced"
| In the case at bar it is not contended,
nor could it reasonably be, that the
plaintiff in this case, as the defendant
in the case brought by Waliug IN the
| Justices court, was prevented by fraud,
mistake or accident from asserting, as
| the representative of the creditors OF
! insolvent Cline, their rights to any
money which might be adjudged due
| from Cline to him; because ne certain
| ly was aware of the fact that, though
denying the indebtedness, If the decis-
| ion was against him, the creditors
whom he represented would perhaps
| be entitled to the money involved there
in. 1t was therefore due tc his own
negligence and omission, in his repre-
sentative capacity. that the rights of
the creditors were not properly pro-
| tected.
| The rule laid down by Mr. Pomeroy
is followed in the California cases cited
| by plaintiff. The case of Kelley VS..
Kriess, 6Sth Cal, 216, was an action
| to obtain a perpetual injunction re-
straining defendant from enforcing
certain Judgment held by him against
| plaintiff. The plaintiff had become an
accommodation surety for one Flynn
on a promssory note executed to
| Kriess. Flynn afterwards sold certain
| personal property to Kriess, which paid
all but S137 of the note, it being un-
derstood that the value of the property
would be indorsed upon the note. Kriess
| failed to do this, but credited the same
on other demands held by him against
Flynn. When the note became due
Kelley urged Kriess to bring suit there
on against Flynn, who at that time had
| property sufficient to pay the same.
Kelley made, according to the COM
| tlement and adjustment of the note
| between Kriess and Flynn.
| Later on Kriess brought suit in the
District Court in and for the county
| of San Mateo, on the note against
Flynn and Kelley, sued out writ of at
tachment, and caused the same to be
| levied upon sufficient property of Flynn
to satisfy the demand. Kelley was
;y, fI,a
Immediately called upon Kriess, who,
! in a conversation, said he had sued
| for, but did not expect to recover the
whole amount of the note; that Kelley
need give himself no uneasiness about
! the suit, as the claim was abundantly
secured under the attachment; that he
| (kriess) would settle the matter with
Flynn; that plaintiff need not answer
! in the cause; that he did not expect or
| intend to pursue him or look to him
| for any portion of the claim.
Kelley, relying upon these statements
| by Kriess, made no appearance in the
case, and judgment was taken against
him and Flynn by default for the whole
amount of the note After judgment
was obtained Kress did not attempt to
enforce the same against Flynn, but
wrongfully and in fraud of the rights
of Kelley discharged and released his
attachment on the property of said
FLYNN, which would have paid the
/ judgment in full, and held the judg-
ment against Kelley
| The Supreme Court, reversing the
lower court in ordering judgment for
| the defendant upon the pleadings. say.
LAS to any relief to which plaintiff may
be entitled and which he could not
| obtain in the former action, or was
prevented from obtaining. by fraudu-
lent acts of the defendant, he may OBJ
| tain it in this action, and by injunc-
| tion if necessary"
| The case of Thompson VS.. Laughlin,
| 81 Cal, 313, was an action to enjoin
the enforcement of an alternative judg-
ment in repevin for the return or value
of the property sued for, where it ap-
peared that during the pendency of the
action, and after issue joined therein,
| the property was all returned to the
plaintiff in the replevin suit; that the
| defendant therein was prevented by the
court from showing that fact under the
| pleadings; and that, after the judg-
ment, and within the time allowed to
move for a new trial, it was agreed be-
tween the parties that, upon a payment
of a specified sum, the judgment would
be satisfied; and that, relying upon the
agreement, no such motion was made,
| and the tender of the amount agreed
upon was rejected after the time for
such motion had lapsed.
There is nothing in the facts in the