¶1delivered the opinion of the Court:
¶2Suit was brought against Andrew Darling, in his lifetime, by appellant and William T. Shelby, who sued for her use, on a bond executed by Marshall O. Roberts and others, as trustees of the Ohio and Mississippi Railroad Company, and Andrew Darling and John W. Miller, their sureties, for the purpose of obtaining an injunction to restrain the collection of a judgment obtained by appellant and her husband, John Fahs, against the Ohio and Mississippi Railroad Company, in the circuit court of Edwards county, for the sum of $4000.
¶3The issues presented by the pleadings, so far as material to the questions before us, are as follows: It is alleged in the declaration, that the bill for injunction was taken, by change of venue, to the circuit court of St. Clair county, where, at the September term, 1865, of that court, the injunction was dissolved and the bill dismissed; and it is alleged, as a breach of the bond, that the judgment sought to be enjoined remains unpaid.
¶4To this breach the 5tli plea alleges, as a defense, that the judgment sought to be enjoined was, at the ¡November term, 1860, of this court, “ reversed, remanded and set aside, and for naught esteemed.”
¶5Five replications were filed to this plea:
¶61st. Nul tiel record.
¶72d. That the service and constructive notice by which plaintiffs were brought into this court, at the time when, etc., were insufficient, by reason of proper notice of publication not having been given.
¶83d. That Homes, attorney for the Ohio and Mississippi Railroad Company, perpetrated a fraud upon plaintiff’s attorneys, by stating that he would not take said cause to this court, and that afterwards the cause was taken to this court, and, the plaintiffs being non-residents, service was had by publication, knowledge of which never came to the plaintiffs.
¶94th. Substantially the same as the third.
¶105th. That this court, at the time of the reversal of the judgment of the circuit court, had not jurisdiction of the plaintiffs.
¶11Demurrers were sustained to the 2d, 3d and 4th replications, and issues were joined on the 1st and 5th.
¶12The record of this court, in the case mentioned in the 5th plea, was, among other things, given in evidence, and the judgment of the court was for the defendant.
¶13The questions discussed arise on the ruling of the court in sustaining demurrers to the replications, and the sufficiency of the evidence to sustain the 5th plea under the issues thereon, presented by the 1st and 5th replications.
¶14We are aware of no authorities going to the length of holding that a statement of counsel, or a promise, even, by him, that he will not take a case from a lower court to this court, has the effect to deprive this court of jurisdiction in the case, when it is subsequently brought here on appeal or by writ of error, contrary to the statement or promise. The authorities cited by the counsel for appellant, Rae v. Hulbert et al. 17 Ill. 572, and Carr v. Miner, 42 id. 179, certainly do not do so. They recognize the general doctrine, that fraud will vitiate a judgment, but they furnish no sanction for the position that what, at the utmost, is but a breach of an executory agreement, is a fraud which will oust the court of jurisdiction.
¶15The jurisdiction of courts, so far as relates to the subject matter of litigation, depends not on the agreement of parties, but on the law; and where parties make agreements that suits shall not be brought, or prosecuted or appealed, which are subsequently violated, they must either apply to the court before which the cause is pending before it has passed from its jurisdiction, or resort to an action on the agreement, for relief.
¶16It does not comport with the solemn and permanent character of the judgment, that it shall be liable tobe set aside and annulled, at however remote a period, upon parol proof, simply, that it was obtained in violation of the terms of an agreement.
¶17Whether the defendants in the writ of error had the constructive notice required by the rules of practice of this court to bring them before the court, and give jurisdiction to proceed in the case, was one of the questions this court had to determine before rendering judgment. It heard evidence upon the question, and determined it by proceeding to render judgment. This determination is final and conclusive, unless set aside by this court on a direct application for that purpose. Its correctness can not be made an issue in the circuit court.
¶18We are of opinion there is no error of law or fact in the record before us, and the judgment is, therefore, affirmed.
¶19Judgment affirmed.