115 Ill. 33 | Ill. | 1885
delivered the opinion of the Court:
This was a creditor’s bill, brought by Charles L. Anderson, to enforce payment of a judgment rendered in the circuit court of Cook county, on the 18th day of December, 1882, in favor of John and Johanna Anderson, against Mary H. Hawhe, for the sum of $1617. The defendant, Mary H. Hawhe, put in an answer to the bill, and also filed her cross-bill, in which she set up that the circuit court, in which the judgment was rendered against her, had no jurisdiction over the person; that she never was served with process, did not appear in the case, and never authorized any appearance, and that as to her the judgment was void.
It appears from the record, that the suit in which the judgment was rendered was an action by attachment. No service by summons or publicatioli of notice was had on the defendant in the action, but J. W. Waughop, an attorney at law, appeared in court, and in the name of the defendant filed a demurrer to the declaration, and this is relied upon to confer jurisdiction on the circuit court of the person of the defendant in the action. The proof is clear that Waughop was never employed by Mary H. Hawhe to appear in the case, and he had no -authority whatever to act for her or in her behalf.
The attorney, Waughop, as to his authority to appear in the case, testified as follows: “I filed the demurrer in the case of John Anderson et al. v. Mary H. Hawhe. I was the administrator of Arthur J. Hawhe. Saw the case quoted in bulletin, and without having conferred with Mrs. Hawhe, or having any communication or authority from her at all, I put the demurrer in the case. ” On cross-examination he further testified: “I have practiced law thirty-four years. I swear that I had no authority to enter a special or general appearance in the case of Anderson v. Hawhe, circuit court, Cook county.” This evidence was corroborated by the defendant, Mary H. Hawhe, so that the fact remains undisputed that the defendant was not served with process, and authorized no one to appear in the case for her.
Where a judgment has been rendered without the service of process on the defendant, and without an appearance, can a creditor’s bill be predicated upon such a judgment in a court of equity? Where a court renders judgment against a defendant, where the court has no jurisdiction of the person, no argument is needed to prove that such a judgment is void, and a creditor’s bill could not be predicated on a void judgment. Here, an attorney at 'law appeared and interposed a demurrer to the declaration. He claims, in his evidence, that the appearance was special, for a particular purpose, and hence that the defendant was not in court by filing the demurrer so as to authorize the judgment. We shall not stop to determine whether the appearance "was special or general. The attorney had no authority whatever from the defendant to appear in the ease, and as his acts were entirely unauthorized, what he did could not be binding on her. It would be establishing a dangerous precedent to hold a judgment valid where there had been no service, merely for the reason that an attorney had appeared on his own motion, without authority, and filed some sort of a plea in the case. In such a ease the attorney might, in an appropriate action, be held to respond in damages; but what relief would that afford to the injured party ? We are not prepared to hold that a person may have his property taken in satisfaction of a void judgment, and be turned over to an insolvent attorney for redress, which might often be the case if a judgment like the one in question could be enforced. In Higgins v. Curtiss, 82 Ill. 28, where a creditor’s bill was filed to enforce payment of a judgment of the county court allowing a claim against an estate, it was held that the administratrix, who was sole devisee, might show that the judgment was fraudulent and inequitable. In Griggs v. Gear, 3 Gilm. 2, it was held that chancery would afford relief where the party’s appearance had been entered without authority. In the case under consideration we regard the judgment as absolutely void, and the person against whom it was rendered had the right to question its validity.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.