210 Ill. 587 | Ill. | 1904
delivered the opinion of the court:
The judgment here assailed was recovered upon default of the defendant in the suit at law, who is appellant here. Section 40 of chapter 110 of Hurd’s Revised Statutes of 1903 provides: “The court may, in its discretion, before final judgment, set aside any default, and may, during the term, set aside any judgment upon good and sufficient cause, upon affidavit, upon such terms and conditions as shall be deemed reasonable.” Under this statute we have held that where an application is made to set aside a judgment by default during the term, the same should be granted by the court where it appears that the defendant has a meritorious defense and that he has been guilty of no negligence in suffering default and judgment to go against him, and that the action of the nisi prius court in denying such a motion is reviewable. (Mason v. McNamara, 57 Ill. 274.) At the term at which the judgment here under consideration was entered appellant moved to set aside the default and judgment, and in support of that motion sought to show that he had been guilty of no negligence and that he had a meritorious defense to the action. This motion was overruled by the superior court, and thereupon appellant prayed an appeal in that case, which, however, he did not prosecute.
The present bill presents to the equity side of the court the same matter that was presented to the law side by the motion, viz., the contention of the appellant that he has a good defense to the suit at law upon the merits, and that he was guilty of no laches in failing to present the same prior to the time he was defaulted. Inasmuch as this matter was fully considered and determined upon that motion it cannot be again considered by the court upon this bill.
“Where courts of law and equity have concurrent jurisdiction. over a question, and such question is decided at law, equity will not re-examine it.” Telford v. Brinkerhoff, 163 Ill. 439; Folsom v. Ballard, 70 Fed. Rep. 12; Simpson v. Hart, 1 Johns. Ch. 97; Matson v. Field, 10 Mason, 100; Orcut v. Orms, 3 Paige, 459; Smith v. Lowry, 1 Johns. Ch. 320.
While it is true that the loss of a defense will justify a court of equity in setting aside a judgment where the defendant has been without fault and it appears that he has a meritorious defense, still a court of equity will not move where it also appears that upon a motion to set aside the judgment the right of the defendant to have the same set aside has been passed upon at law. An exception to this rule exists where, after the motion to set aside the default had been disposed of, some matter comes for the first time to the knowledge of the defendant which was not urged in support of the motion, and which constitutes a sufficient ground for setting aside the judgment when taken in consideration with other facts which in themselves are insufficient. ' The case of Wilday v. McConnel, 63 Ill. 278, relied upon by appellant, is of this character. There, after judgment had been entered in the suit at law, the defendant moved to set the same aside, and sought to show in support thereof that he had a good defense to the action and that he had not been served with summons. The court overruled his motion. Afterwards he filed his bill to enjoin the collection of the judgment and praying for a new trial. In the suit at law the executor of one McConnel was the plaintiff, and in the bill complainant (defendant in the law suit) averred that he had paid a large portion of the amount involved in the judgment to McConnel in his lifetime, “for which he had receipts, but which had been mislaid and forgotten and only found since the denial of his motibn for setting aside the verdict.” This court, in holding that he Was entitled to relief in equity, made this statement : “The receipts had been forgotten at the time the default was entered, and when the motion was made to set it aside their existence had not occurred to the defendant. Had he been present at the calling of the case and pleaded, he had no available defense without the evidences of his payments.” In the case at bar nothing is stated by the bill of appellant that was not fully known to him when he applied for relief in the suit at law.
It is said, however, that appellant’s defense to the suit at law is one which he could not have made except by bill in equity enjoining the prosecution of the action. The defenses suggested are two: First, that the cause of action had been satisfied; and second, that if not satisfied the suit was brought in the name of the wrong plaintiff. Both of these defenses were entirely available at law.
It is then said that the answer of appellee to the bill does not aver that appellant had an adequate remedy at law, wherefore that defense cannot be insisted upon. The defense interposed, as we understand it, is not that appellant should have resorted to a court of law, but that he has already done so, and that such court has concurrent jurisdiction with a court of equity to grant the relief sought. The appellant argues, however, that this view amounts to a holding that the matter has been adjudicated, and that such a defense cannot be considered by this court because not interposed by the answer. While the answer does not expressly aver that there had been an adjudication, that fact fully appears from the bill, which sets out the motion, the affidavits in support thereof and the action of the court thereon, and may properly be considered in determining the question, even though the defendants withdrew the demurrer which they had filed and answered the bill. 1 Beach on Modern Eq. Pr. sec. 276; Gordon v. Reynolds, 114 Ill. 118; Grimmer v. Friederich, 164 id. 245; Kesner v. Miesch, 204 id. 320; Baumgartner v. Bradt, 207 id. 345.
It is unnecessary to consider the other questions discussed by counsel.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
