50 Ill. 21 | Ill. | 1869
delivered the opinion of the Court:
We are at a loss tto perceive any merits whatever in the plaintiff's case, and the court did right in dismissing the bill, as there is not a seinbl~nce of equity in it.
While we do not say a court of chancery should never open a judgment on application of sureties to let in a defense of usury, the fact in this case so clearly appearing, that the complainants did not consult their principal when process was served upon them, for the purpose of ascertaining the exact character of the transaction, or attempt, in any way, to make a defense at law, taken in connection with the character of the defense n~w pretended, forbids us from interfering.
The point of objection, that the court refused to continue the motion to dissolve the injunction, has no force. The statute provides when such motion is made, if the complainant will satisfy the court by his own affidavit, or the affidavit of any disinterested person, that the answer or any material part of it, to be specified in such affidavit, is untrue, and that he has witnesses whose testimony he believes he can procure by the next term of the court, who will disprove the answer, or such material part of it as may be specified, and that he has had no opportunity to procure such testimony since the coming in of the answer, the court may continue the motion until t next term. Rev. Stat. 383, sec. 13.
The answer in this case was a denial of the statements in t$ei>' wer. Such affidavits surely could not “ satisfy” any court competent to administer the law, that the answer was untrue, and that affiant had witnesses to disprove it. bill, and in the affidavits filed by complainants there is not/lg; be found the name of a single witness, nor their residence, ' nor the facts they will prove, but simply, that they expectX tdiípHb disprove by some unnamed and unlocated witnesses, the anh-......
We have said there was no equity on the face of the bill, and if there was none, a continuance of the motion would have been of no avail. There was no equity, because the sureties, complainants, showed no diligence to find out from their principal (Smith) the precise nature of the transaction, and Smith himself let judgment go by default, and he never informed his sureties there was any defense of usury or otherwise, to the note. The sureties might have, by the use of ordinary diligence, attained a knowledge of the defense to the note, and they are inexcusable for not exercising it. A party cannot claim the benefit or aid of a court of equity, who has been guilty of laches in protecting his rights, unless such laches may be imputable to the party claiming against him, of which there is no pretense in this case. Dickerman v. Burgess, 20 Ill. 266; Ballance v. Loomis, 22 ib. 84; Owen v. Ranstead, ib. 161, and numerous other cases to the same purport might be cited, that being the doctrine of this court since its first organization. And in a case of usury, this court said in. Lucas v. Spencer, 27 Ill. 15, that a party cannot resort "to chancery to deliver himself from a judgment which includes usurious interest, where he had an opportunity to defend against the recovery of the judgment.
But plaintiffs say after the judgment by default was rendered, they applied to Mr. Case, an attorney of the court, to move to set aside the default. This is contradicted by the affidavit of Mr. Case, and besides, if he had been applied to, and failed to make the motion, that would be no ground of relief in chancery, as this court said in Albro v. Dayton, 28 Ill. 325.
In Ramsey v. Perley, 34 ib. 504, this court said the rule was well settled, that where by the use of ordinary diligence and precaution, a defense could have been made available upon the trial of a suit at law, no relief will be granted in equity.
The remaining point is the assessment of damages on the dissolution of the injunction. It is clear the act of 1845 applied to this ease, and not the act of 1861, and the assessment was proper under the first named act.
There being no error in the record, the decree must be affirmed. .
Decree affirmed.
