Cooley v. Willard, 40 Ill. 88 (1865)

April 1865 · Illinois Supreme Court

40 Ill. 88

Cooley v. Willard.

(April Term, 1865.)

Release eo errors — dismissed of a bill in chancery for am, injunction absolutely, and a dismissal “ without prejudice.” Although a wide difference exists between the dismissal of a bill in chancery, absolutely, upon the hearing, and its dismissal “without prejudice,” in its bearing upon the question whether the complainant is concluded in his right to sue again, yet that distinction does not obtain in reference to a plea of release of errors, alleging that the judgment sought to be reversed had been enjoined at the suit of the plaintiff in error, and that the suit in chancery in which the injunction was issued had been dismissed.

This was a writ of error prosecuted from a judgment at law rendered in the Circuit Court of Will county.

The defendant in error pleaded that a writ of injunction had . been sued out of the said Circuit Court at the instance of the defendant in the judgment, enjoining the same, and that thereby all errors in the proceedings at law were released. The plea, in referring to the disposition which had been made of the suit in chancery in which the injunction was issued, alleged that “ the said bill of complaint was afterward, on the hearing of said cause in chancery, dismissed by said Will county Circuit Court,” etc.

The plaintiff in error replied, nul tiel record.

It appeared from the record of the proceedings in chancery, that the suit was “ dismissed without prejudice,” and it was insisted this was a fatal variance between the record set out in the plea and the one produced in evidence in support of the plea.

Per Curiam :

It is understood that a wide difference exists - between the dismissal of a bill in chancery, absolutely, upon the hearing of a cause, and its dismissal “without prejudice,” in its bearing upon the question whether the complainant is concluded in reference to the subject-matter of his complaint.

But for the purposes of this issue, we do not think that distinction should obtain; there is no such variance between the record set out and that produced in evidence, as to defeat the plea. We find the issue for the defendant, and dismiss the writ of error.