129 Ill. 249 | Ill. | 1889
delivered the opinion of the Court:
July 12,1884, appellant, West, recovered a judgment before a justice of the peace of Cook county, against the Chicago Driving Park Association, a corporation organized under the laws of this State, from which the association appealed to the circuit court of that county, filing appeal bond in compliance with the statute, with appellee as security thereon, properly approved. On the 15th day of June, 1885, the appeal was dismissed by the circuit court for want of prosecution. Suit having been brought upon the appeal bond, appellee alone filed this bill, under, as it is alleged, section 135 of the Criminal Code, seeking to have said judgment declared void, and to perpetually enjoin further proceedings to enforce liability upon said appeal bond, upon the ground that the cause of action for which the judgment appealed from was recovered was a gambling contract.
We should perhaps notice the contention of counsel for appellant, that sections 131 and 135 of the Criminal Code can have no application to judgments unless rendered by confession,—that is, these sections of the statute, in their applications to judgments, affect only such as result directly from the voluntary act of the defendant, and not “adversary” judgments. We are not prepared to so restrict the operation of this statute. By section 131, “all promises, notes, bills, bonds, covenants, contracts, agreements, judgments, mortgages, or other securities or conveyances made, given, granted, drawn or entered into, or executed by any person whatsoever, where the whole or any part of the consideration thereof shall be for any money, property or other valuable thing won by any gaming, * * * or by wager or bet upon any race,” etc., are made, not only voidable, but absolutely “void and of no effect.’’' Being void, it is not in the power of the party to whom made, granted, given or executed, or in whose interest they are drawn or entered into, to give the contract validity. Nor can the court, at the instance of such party, any more than it could, by the confession or consent of the defendant, vitalize the contract, and by its judgment defeat the effectiveness of the proceeding in equity authorized by the 135th section of the statute to set aside the void contract. So it has been held that a draft given in payment of a gambling debt is void in the hands of a bona fide holder. (Chapin v. Dake, 57 Ill. 295.) And where a judgment had been obtained at law upon a promissory note given for money won at gaming, it was held, upon bill filed by the maker under section 135 of the act, that the judgment was void, and it was accordingly set aside. (Mallett v. Butcher et al. 41 Ill. 382.) It was there said: “It was the intention of the legislature to make all judgments, like the contracts on which they are founded, absolutely void,—of no vitality,—and they can nbt be vitalized by the action of any court.” This being so, it can make no difference that a defense was or might have been made in the suit at law to recover judgment upon the illegal contract. The rule in equity, that courts of chancery will not take jurisdiction where there is an adequate defense or remedy at law, must yield to the requirements of this statute, that relief may be granted in a court of equity to vacate and set aside judgments and contracts obtained in violation of this provision; and it was so held in the case last cited, overruling Abrams et al. v. Camp, 3 Scam. 290.
It would perhaps be difficult, upon this record, to determine, as a question of fact, whether the money claimed by West (plaintiff in the common law suit) was won upon a wager or bet, or whether the transaction was gambling, within the meaning of this statute, nor, in the view we entertain, will it be necessary to a decision of the cause. Agricultural societies, stock and other associations organized for the purpose, and having for their object, among others,, the improvement of domestic animals, and to induce competition and rivalry in their importation and" development, may offer premiums or purses to exhibitors of such animals, without being guilty of violating the Criminal Code. On the other hand, the law will not tolerate any shift or device upon the part of any association or individual, whereby, under the pretense of bettering the-condition or developing and improving the stock, gambling is intended or permitted. But, as already said, a determination of that question here is unnecessary, for if it be conceded that the contract upon which the judgment at law was based was void, because a gambling contract, this bill can not be maintained.
Section 135 of the Criminal Code is as follows: “All judgments, mortgages, assurances, bonds, notes, bills, specialties, promises, covenants, agreements, and other acts and deeds,, securities and conveyances, given, granted, drawn or executed contrary to the provisions of this chapter, may be set aside and vacated by any court of equity, upon bill filed for that purpose by the person so granting, giving, entering into or executing the same, or by his executors .or administrators, or by any creditor, heir, devisee, purchaser, or other person interested therein; or, if a judgment, the same may be set aside,, on motion of any person aforesaid, on due notice given.”
It is not contended that the complainant in this bill (appellee here) "falls within either class of persons designated who may file a bill under this statute, unless it be the latter—“or other person interested therein.” It is not alleged in the bill, or shown, that appellee is an officer, stockholder or creditor of the driving park association, (defendant in the common law judgment,) or in any way interested in the driving park or its estate, assets or funds, or in the judgment rendered against it. The collection of the judgment in favor of West, against the driving park association, would in no way affect appellee, or any estate or fund to which he had any right or in which he had any interest, until he voluntarily became security upon the appeal bond entered into by the driving park association to enable it to re-try its cause in the circuit court, as it might do under the statute. In no sense can appellee be said to be a person “interested, ” either in the original contract or in the judgment rendered thereon by the justice of the peace, within the contemplation of the section of the statute quoted. In respect of this judgment he was a mere volunteer, who, at the instance of the defendant, voluntarily obligated himself to pay the judgment rendered against his principal by said justice, and all costs occasioned by the appeal, in case the appeal was dismissed in the circuit court, as we have seen was done. • It can not affect the standing of appellee, or discharge his obligation, that his principal might, either at law or in equity, have avoided the judgment. It is sufficient to say that the principal has not sought to do so, either upon motion or by bill, and the appeal having been dismissed, appellee’s liability upon his bond became fixed, upon non-payment of judgment and costs by his principal, against which liability a court of equity is not authorized, either by this statute or by its general powers, to relieve him.
We are of opinion that the Superior Court erred in decreeing relief to appellee upon his bill, and that the.Appellate Court erred in affirming the same. The judgment of the Appellate Court and decree of the Superior Court are reversed, and the cause remanded to the Superior Court, with instructions to enter a decree dismissing the bill.
Judgment reversed.