15 F. 196 (D.Colo. 1882), Heckling v. Allen

Citation:15 F. 196
Party Name:HECKLING, EX'X, v. ALLEN.
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 196

15 F. 196 (D.Colo. 1882)




United States Circuit Court, D. Colorado.

December Term, 1882

M. B. Carpenter, for defendant.

S. P. Rose, for plaintiff.

Page 197


This suit was brought March 2, 1880, in the district court of Lake county, on a judgment recovered in the superior court of Cook county, Illinois, February 14, 1880, for the sum of $11,540. A writ of attachment was issued and levied on certain property which was claimed by third parties under a mortgage from Allen. No defense to the action was made except by demurrer to the complaint and motion to dissolve the attachment, and the cause having been removed into this court September 13, 1880, judgment was entered here October 30, 1880, in favor of plaintiff's testator and against defendant, Allen, for $12,059.30.

At this term defendant has filed a petition setting up the proceedings in this court, and alleging that in November, 1881, he caused the judgment of the said superior court of Cook county, Illinois, to be removed into the appellate court of the first district of Illinois by writ of error, and that such proceedings were had in the said appellate court; that on the twenty-sixth day of October last past the judgment of the said superior court was reversed, and the cause remanded for further proceedings; that on the thirtieth day of October, 1882, plaintiff moved the said appellate court to strike out the order remanding the said cause to the said superior court, and to allow an appeal from the judgment of the said appellate court to the supreme court of Illinois, which motion was denied. Wherefore defendant asks that the judgment of this court entered on the thirtieth day of October, 1880, and all proceeding thereunder in the sale of certain property, real and personal, be set aside and for naught held.

The substance of the matter is that, since the judgment of this court was entered, the judgment of the superior court of Cook county, Illinois, on which the same was based, has been reversed, and no authority remains in any tribunal to reinstate it; therefore the judgment of this court and all proceedings thereunder should be vacated and set aside. The facts set out in the petition are sufficiently established by a transcript of the proceedings in the appellate court of Illinois, and they are not controverted by plaintiff. But it is contended that after the term in which judgment was rendered the court has no jurisdiction of the case to vacate the judgment or make any order affecting it. Unquestionably the general rule as to all matters which were in issue, or which might have been contested in the cause at the time judgment was rendered, is as stated. Bank of U.S. v. Moss, 6 How. 31; Cook v. Wood, 24 Ill....

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