81 Ill. App. 35 | Ill. App. Ct. | 1899
delivered the opinion of the court.
At the June term, 1896, of the Circuit Court of Pike County, James F. Brawley, as guardian of Willie Kerr, recovered judgment against John Kerr, Jr., for $492 and costs. An execution issued from the judgment and was levied upon forty acres of land belonging to the defendant. At the sheriff’s sale which followed, Brawley bid in the land for the debt and costs and the execution was returned satisfied. There being no redemption from the sale a deed was subsequently executed to Brawley as guardian. At the April term, 1898, of the Circuit Court, on account of irregularities in the advertisement and sale of the premises, a decree was rendered at the suit of Iierr setting aside the sheriff’s deed as being null and void and a cloud upon his title; but the decree made no provision for vacating the clerk’s entry of satisfaction of the judgment made on account of the sale of the land.
Brawley subsequently filed a bill in the name of the minor, setting forth in detail the above recited facts and praying for a decree requiring Kerr to pay the judgment indebtedness or that the apparent satisfaction of the judgment be vacated and the judgment revived. After the court had overruled a demurrer to the bill, the defendant filed an answer, denying the allegations contained in it, and the. cause went to hearing upon the issues raised thereby. The court, finding that no title to the land passed by the sale, that no part of the judgment had been paid and that there was due the minor from the defendant $492 and interest thereon at the rate of five per cent from June 25, 1896, rendered a money decree against Kerr for $546.61 and costs.
It is not contended that any part of the judgment rendered against appellant on the 25th of June, 1896, for money of his late ward unlawfully withheld by him, has ever been paid, but a reversal of the decree is urged upon the technical grounds, first, that appellee had a complete remedy at law by motion to have the apparent satisfaction of the judgment vacated; second, that a money decree could not be based upon the judgment of June, 1896, because it was rendered in a cause entitled “ James F. Brawley, guardian of Willie Kerr v. John Kerr, Jr.,” and this cause is entitled “ Willie Kerr, minor, by James F. Brawley, guardian, v. John Kerr, Jr.;” third, that the judgment of June, 1896, was obtained in an irregular manner.
Had appellant stood by his demurrer to the bill he would be in much better position to urge his first contention. Having elected to answer and have the case tried upon the merits, however, the technical objection raised by the demurrer should not prevail. The vacation of the apparent satisfaction "of a judgment at law is not a matter against .which the doors of a court of equity are entirely closed. In the chancery proceedings by which the sheriff’s sale and deed were set aside the court could have vacated the satisfaction of the judgment. It is not like a case where a court of equity has no authority under any conditions to exercise jurisdiction.
There is abundant authority for setting aside the record satisfaction of a judgment where the title of property purchased by the plaintiff under execution fails or the property is recovered back by the judgment debtor, because of irregularity in the sale. Freeman on Judgments, Sec. 478; Warner et al. v. Helm et al., 1 Gilm. 220; Botsford v. Wilson et al., 75 Ill. 132; Bressler et al. v. Martin et al., 333 Ill. 278.
There is no force in the objection that the judgment was not admissible as a basis for the decree, because the parties were not identical. Willie Kerr was the beneficiary of the judgment as he is of the decree. He was the substantial plaintiff in the suit at law as he is the complainant in the suit in equity.
It is too late to question the judgment because of the alleged irregularity of entering it when there was a demurrer to some of the pleadings undisposed of. Ho effort was ever made to have the judgment reviewed by the Appellate Court, and it does not appear that any such objection was made upon the trial.
We are unable to discover anything in the record to justify a reversal of the decree. Decree affirmed.
