21 Ill. App. 432 | Ill. App. Ct. | 1886
The judgment sought to be enjoined was recovered by the appellees, Bakers, against Fox, on personal service and default. The declaration contained a special count and the common counts. It is insisted by counsel for appellant that the special count stated no course of action on which a recovery could.be maintained and that therefore the judgment is void. If it be conceded that the special count did notshow that there was a Iona ficle indebtedness existing between Fox and Bakers at; the time of the commencement of the attachment proceedings, yet, as held in the case of Hopkins Rowell v. George Chandler, 83 Ill. 288, when the declaration contains the common counts and judgment is rendered by default, it will be presumed, in the absence of a bill of exceptions to the contrary, that the court heard evidence to justify the judgment under the common counts. The stipulation in this case states that on the 15th day of October, 1883, evidence was heard ex parte and judgment was rendered in said attachment proceeding by default of said Fox for the sum of $570.
In this case there is no necessity of a presumption that evidence was heard. It is expressly stipulated that evidence was heard. The court had jurisdiction of the person and subject-matter, and the judgment can not be attacked collaterally, even though it was conceded that there were errors and irregularities committed during the progress of the proceeding. Buckmaster v. Carlin, 3 Scam. 104; Mulvey v. Gibbins, 87 Ill. 367; Martin v. Judd, 60 Ill. 79 ; Town of Lyons v. Cooledge, 89 Ill. 534; Frydendale v. Baldwin, 103 Ill. 325. It is further insisted by counsel for appellant that Babers having accepted the note of Fox set out in the stipulation, supra, on settlement, that no recovery could be had on the enjoined indebtedness without the return or offer to return the note. And we are referred to the case of Brooks v. Gates, 8 Ill. App. 435, as sustaining that view. That case is not analogous to the one at bar. In that case the party was seeking to recover what he had paid on a contract, without returning or offering to return what he had received on it. The principle announced in that case is elementary. In the case at bar, nothing was received on the note. It was taken for a present indebtedness. The names of securities thereto are admitted to be forged, the principal was insolvent and had fled the country. The note was worthless. The delivery of the forged note to Bakers did not change the character of the liability to them, nor did it affect them or require of them the return of the worthless paper to entitle them to prosecute this suit against Fox. In the view we take of the law, every presumption must be indulged in favor of the validity of the judgment. That it was obtained by fraud can not be presumed. Fraud must be alleged and proved. Applying to this ease the rule announced supra, we find no error in the decree dissolving the injunction and in dismissing the bill.
Decree affirmed.
