100 Ill. App. 142 | Ill. App. Ct. | 1902
delivered the opinion of the court.
It is contended by the learned counsel for appellant that a court of chancery has no jurisdiction here to grant a new trial in an action at law, and therefore that the decree is here erroneous. In this behalf the decision of this court in Mechanics M. Bank v. Colehour, 44 Ill. App. 470, is cited and relied upon. The decision is not controlling of this case. It goes only to the extent of holding that a court of chancery has not in general, jurisdiction to direct a court of law what it shall do. But it does not hold that a court of chancery may not enjoin a party to a suit at law, or to a judgment at law,-from enforcing it, and thus, by operating upon the person in restraint of action, control the effect of the suit or judgment. This is in effect what the court below undertook to do here, i. e., to restrain appellant from enforcing the judgment against appellee as a bar to her further maintenance of her suit. To this extent a court of chancery under our practice has undoubted jurisdiction. Wilday v. McConnell, 63 Ill. 278; Foote v. Despain, 87 Ill. 28; Lieserowitz v. W. C. Ry. Co., 80 Ill. App. 248; P. N. Ins. Co. v. Chichocky, 94 Ill. App. 168.
And these decisions are supported by authority elsewhere. 2 Beach Mod. Eq. Jur., Sec. 658; 1 Black on Judgments, Sec. 356 et seq.; Freeman on Judgments (2d Ed.), Sec. 486.
The" ground upon which such relief can be granted is, however, in our practice, at least, limited to cases wherein the judgment at law has been obtained through fraud, accident or mistake.
In Foote v. Despain, supra, our Supreme Court say:
“We understand the rule to be well settled that when a judgment has been obtained by fraud, accident or mistake, courts of equity have jurisdiction to grant a new trial at law, or otherwise relieve against the judgment, unless the party against whom the judgment has been rendered is guilty of negligence. * * * When a judgment has been obtained by fraud, accident or mistake, and the complaining party is free from negligence, it is proper the relief should be granted in a court of equity.” .
There can be no question as to equity jurisdiction if fraud, accident or mistake is shown in the obtaining of the judgment, and it is also shown that the complaining party and his attorney have been free from negligence. •
The further question is, however, presented, as to whether, upon the showing here made, the complainant below, appellee here, was entitled to the relief granted.
The cause was disposed of upon bill and answer, no evidence having been heard. The answer was not under oath, the bill having in terms waived a sworn answer.
The fact that the answer was not replied to did not warrant the court in taking its averments as true, as would be the case if an answer under oath were not replied to, against which nothing could be heard save matters of record for want of replication. The only effect of an unverified answer is to reach an issue, like any other pleading, whether it be replied to or not. Chambers v. Rowe, 36 Ill. 171; Jones v. Neely, 72 Ill. 449.
No evidence was heard in support of the allegations of the bill ’ of complaint. The decree makes no findings of fact. There are no depositions in the files. Moreover, we are of opinion that the bill is insufficient to warrant any relief. No fraud is shown by the allegations of the bill in the obtaining of the judgment, the use of which by appellant is sought to be enjoined. If it can be said that there is a showing of accident or mistake, yet no showing is made bjr the allegations of the bill to the effect that appellant was not negligent in permitting the judgment to be rendered. By her mere appearance at the making of the call she could have prevented the judgment. The negligence of her attorney in failing to attend the call and thus avoid a dismissal, is to be imputed to her as her negligence. No showing is made by the bill of complaint that the attorney for appellee was not well aware of the order for a general call of the docket, which would include the suit which he had brought for appellee.
If there was no ground for relief upon the basis of fraud, accident or mistake, then the mere irregularity of procedure in the making of any such general call of the docket, if there was any irregularity therein, was a matter which could and should have been corrected in the court below upon motion, or upon appeal, or writ of error by a court of appellate jurisdiction. Mo jurisdiction is vested in a court of equity to take the place of the law courts for such purpose.
There being nothing to sustain the decree, it must be reversed and the cause will be remanded.
