63 Ill. 278 | Ill. | 1872
delivered the opinion of the Court:
Appellant filed his bill to enjoin the collection of a judgment at law, and praying for a new trial.
The evidence clearly shows that the judgment is unjust to some extent; that at least $1400 had been paid upon some of the notes sued upon, which amount had not been credited; that probably other sums had been paid, and that the receipts for the payments had been mislaid and Avere forgotten, until after the rendition of the judgment. A motion to set aside the default was made at the same term of the court, and overruled, and this bill was filed within the year.
There is a conflict in the evidence as to whether the defendant had actual notice of the pendency of the suit at law, and knowledge that the notes now contested were in suit.
If a judgment is obtained by fraud, and without any negligence on the part of the debtor, a court of equity will afford relief, and either open the case and grant a trial, or award a perpetual injunction.
We can not pronounce the debtor guilty of Jaches. He stated positively that he was not served with process, and had no opportunity to defend the suit. The deputy sheriff, who served the writ, testified that he did not read it, but stated the names of the parties, the amount of the damages, and the term of the court.
The officer did not fully read the summons. Had he done so, perhaps the default would never have been taken. We are not, therefore, satisfied that there was actual notice given of the suit upon the notes to which there seems to be a just defense, as there were several suits, upon different notes.
But equity will sometimes relieve, even after a verdict, and when the defendant at law might have defended himself. As was said in the case of Countess of Gainsboroug v. Gifford, 2 Peere Williams, 424, by the master of the rolls: “If the plaintiff at law recovers debt against the defendant, and the defendant afterwards finds a receipt under the plaintiff’s own hand for the very money in question, the verdict is against conscience; and though the receipt were in the defendant’s own custody, yet he, not being apprised of it, seems entitled to the aid of equity, it being against conscience that the plaintiff should be twice paid the same debt.”
The case at bar is similar to the suppositious case in the opinion cited. 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. The evidence is. conclusive that hq was not apprised of the receipts until after final judgment.
So far as the record discloses, no actual fraud can be imputed to either party, as the executor can not be presumed to know of the payments made to the testator; but, by accident or mistake, an unjust judgment has been obtained.
We are strongly inclined to the opinion that, unless relief can be afforded, a debt will be twice paid. This would be in opposition to every principle of right and equity.
The complainant seems to have acted in good faith, and with proper vigilance in the assertion of his rights. He evidently has a meritorious defense, and has had no chance of presenting it. He ought to have an opportunity to make it.
We might determine the rights of the parties, and grant a perpetual injunction against the collection of so much of the judgment as, by the record before us, appears to have been paid. The evidence is, however, somewhat conflicting, and as there has been no trial at law, we prefer to open the case and send it back to a court of law, to be tried.
It is accordingly ordered that the default be set aside, and that the defendant in the suit at law be allowed to plead, and make his defense.
The decree is reversed and the cause remanded, with directions to enter a decree in conformity with this opinion.
Decree reversed.
