O'Brien v. O'Brien, 195 Ill. App. 346 (1915)

Nov. 15, 1915 · Illinois Appellate Court · Gen. No. 20,838
195 Ill. App. 346
Emma M. O'Brien, Defendant in Error, v. Thomas F. O'Brien and Charlotte O'Brien, Plaintiffs in Error

Emma M. O’Brien, Defendant in Error, v. Thomas F. O’Brien and Charlotte O’Brien, Plaintiffs in Error.

Gen. No. 20,838.

1. Forcible entry and detainer, § 25 * —when equitable defense not considered. An action of forcible detainer is an action at law, and an equitable defense cannot be set up to such an action.

2. Trial, § 33 * —when postponement pending determination of injunction suit properly denied. A motion in an action at law to postpone the trial pending the determination of a proceeding in chancery, held properly denied where it appeared that defendant had filed a bill praying for an injunction to restrain the prosecution qf such action on purely equitable grounds, but where such injunction had not been obtained when the motion was made; for the reason that the mere fact that a bill had been filed to restrain the prosecution of an action at law does not of itself, without a restraining order, entitle a defendant to a continuance of the action at law, nor will the court of law postpone trial of the action to await action of the court of chancery on the bill for an injunction.

Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.

Heard in this court at the October term, 1914.

Affirmed.

Opinion filed November 15, 1915.

John S. Dornblaser, for plaintiffs in error.

Alden, Latham & Young, for defendant in error; Charles Martin, of counsel.

Mr. Justice Baker

delivered the opinion of the court.

This writ of error brings in review a judgment of the Municipal Caurt for the plaintiff in an action of forcible entry and detainer.

The evidence shows that plaintiff had a legal title to the premises in question and was rightfully in possession until the defendant, Thomas F. O’Brien, without her consent took possession of a portion thereof. He filed a bill in chancery to have a trust in the premises declared and for an order restraining the prosecution of the forcible detainer suit, but procured no restraining order in the chancery suit. . Defendant moved in the Municipal Court to postpone the trial *347until the motion for an injunction was disposed of, and contends here that the court erred in denying his motion. The grounds of relief alleged in the bill were equitable and cognizable only in a court of chancery. An action in forcible detainer is an action at law and an equitable defense cannot be set up in such action. A court of law will not postpone the trial of a cause to await the decision of a court of chancery on a motion for an injunction to restrain the prosecution of the action. If defendant has an equitable defense, he must obtain an injunction from the court of chancery to restrain the prosecution of the action'; but the mere filing of a bill does not entitle such a defendant to a continuance of the common-law action.

The other grounds of defense urged are without merit. The court properly gave judgment for the plaintiff and the judgment is affirmed.

Affirmed.