dissenting:
We do not agree to the second paragraph of the majority opinion. Plaintiffs in error have never, as yet, had a hearing upon the merits of their case. The original decree upon which the creditor’s bill filed in this case is based was affirmed in White Star Mining Co. v. Hultberg, 220 Ill. 578, upon the sole ground that the submission was a general one and that the award which followed was binding upon the parties, and from the averments of the cross-bill filed in this case we are impressed with the view that it is shown that the original decree is inequitable and unjust and that it ought not to be enforced by a court of equity, which facts were admitted by the motion to strike the cross-bill from the files. There are numerous authorities which hold that when a complainant is forced to go into a court of equity by original bill and obtain a second decree before the first decree can be executed, if it is made to appear in the second suit that the first decree is inequitable and unjust, the co'urt in which the second bill is filed will examine the grounds upon which the first decree rests, not for the purpose of annulling and setting aside that decree, but for the purpose of advising itself as to the justice of the decree before it makes it its own decree by assisting in its execution. In Wadhams v. Gay, 73 Ill. 415, on page 430, it was said: “There is authority for the doctrine that the court may, on a bill to carry a decree into execution, look into the case to see if it will make the same decree a second time.” In such a case, it is said, “it is competent for the court, in respect of the special application, to examine the decree, and if it be unjust, to refuse enforcement.—Adams’ Eq. 416.” Daniell, in 2 Daniell’s Chancery Practice, 1614, citing Lawrence v. Berney, 2 Ch. Rep. on this point says: “It is laid down that although where a decree is capable of being executed by the ordinary process and forms of the court, whatever the iniquity of the decree may be, yet till it is reversed the court is bound to assist it with the utmost process the course of the court will bear. But where the common process of the court will not serve and things come to be in such a state and condition, after a decree made, that it requires an original bill, and a second decree upon that, before the first decree can be executed,—if the first decree is unjust,—then this court desires tp be excused in making it its own act and to build upon such foundations and charging its own conscience with promoting an apparent injustice; and this obliges the court to examine the grounds of the first decree before it makes the same decree again.” And in the earlier case of O’Connel v. McNamara, 3 Dr. & Warren, 411, Lord Chancellor Sugden thus announced the rule: “I do not understand the rule to be that this court is bound to carry into execution an erroneous decree. On the contrary, I apprehend that when a party comes into this court asking for the benefit of a former decree, he must be prepared to show, if the case requires it, that such decree was right.” And in the late case of Perry v. United States School Furniture Co. 232 Ill. 101, which was a creditor’s bill, this court enforced the rule and declined to assist in carrying into execution a judgment at law by reason of the fact that the contract which was..the basis of the judgment was in violation of the anti-trust statute and contrary to public policy. On page 109 of the opinion the court said: “There can be no question that the judgment was a valid and binding judgment against the United States company, and that as against it Loughlin had a right to pursue his remedy at law to secure its payment and satisfaction, but a court of equity will not lend its aid in the enforcement of claims or rights which arise out of contracts that are contrary to the public policy of the State.” In Teel v. Dunnihoo, 230 Ill. 476, it was held, upon an original bill to carry into execution a former decree, the court will look into the original case and see whether the decree is equitable and just before it will decree its enforcement; and there are numerous other cases which have been decided by this court where the doctrine of the foregoing cases has been recognized. (Higgins v. Curtiss, 82 Ill. 28; Pestel v. Primm, 109 id. 353; Lancaster v. Snow, 184 id. 534.) In the last case, on page 537, it was said: “Since the opinion was filed in Wadhams v. Gay, 73 Ill. 415, the rule has been in this State that where an original bill is filed asking for a decree to carry a former decree into execution, the court may look into the original case and see if the former decree is equitable and just, and if it is not, may refuse to enter a decree to enforce and carry it out.”
The foundation of the doctrine announced in the foregoing cases is, that a court of conscience will not. lend its assistance to the consummation of a' wrong by carrying into effect an inequitable and unjust decree. This is an equitable doctrine and does -hot apply to the enforcement of judgments at law, although it was applied to a judgment at law in Perry v. United States School Furniture Co. supra, where a question of public policy was involved. The cases cited in the majority opinion which hold that upon a creditor’s bill the court will not inquire into the validity of the -judgment which forms the basis of such bill are not in point. We are of the opinion that, if the facts averred in the cross-bill are established by proof, while a court of equity should not enjoin the execution of the original decree it ought not to enforce that decree, but should leave the defendants in error to enforce said decree as best they may by the ordinary processes of the court.