Ames v. Snider

• Decision Date: 30 September 1870
• Citation: 1870 WL 6459,55 Ill. 498
• Parties: ZIMRI F. AMESv.CORNELIUS SNIDER.
• Court: Illinois Supreme Court

55 Ill. 498

1870 WL 6459 (Ill.)

ZIMRI F. AMES

v.CORNELIUS SNIDER.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of LaSalle county; the Hon. EDWIN S. LELAND, Judge, presiding.

The opinion of the court contains a sufficient statement of the case.

Mr. B. C. COOK and Mr. M. E. HOLLISTER, for the appellant.

Mr. R. D. MCDONALD, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was a bill in chancery, in the LaSalle circuit court, filed by Zimri F. Ames, against Cornelius Snider, to enjoin the collection of a judgment, on the allegation that the judgment was obtained by the false swearing of Snider, the plaintiff in the action, when there was nothing, in fact, due.

A demurrer was interposed and sustained, and the bill dismissed.

The only question is as to the propriety of this decree. It appears appellee had done some work for appellant, on his house and barn, and brought a suit in the LaSalle circuit court for the value thereof. There was no appearance or plea to the action by appellant, although he was duly served with process. The consequence was, a judgment for default was duly entered against him at the February term of that court. At the February term, 1870, one year thereafter, an inquest of damages was had, and they were assessed at $275. The defendant had due notice, prior to the inquest, of the default, and moved at the term at which the inquest was had, to set the default aside, which the court refused.

The ground for the relief sought is, that so soon as process was served upon him, he applied to a competent lawyer to appear in the case for him, who prepared a plea in abatement, for a misnomer of the defendant, he being sued by the name of Zemeriah, when his name was Zimri, which he duly subscribed and swore to, but which plea, by some accident, or inattention on the part of his counsel, was not filed. He further claims relief on the ground that on the inquest of damages, the plaintiff was the only witness, and by his false and perjured testimony, the verdict was found.

It cannot be, and is not, denied, that the default was regularly taken, for want of a plea, and the inattention of counsel in neglecting to file a plea is no cause for the interference of a court of equity to enjoin a judgment obtained under such circumstances. Smith et al. v. Powell et al. 50 Ill. 21. If the defendant has been injured by the want of due diligence and care on the part of his counsel, the law is open to him, and will afford him the full measure of redress.

On the ground that the verdict was the result of perjury, it may be said that many verdicts are obtained by the same means, but that fact alone would not open the ear of the chancellor to the complaint. In this case the defendant had full notice that an inquest of damages would be had, and he made no appearance. He now says that he does not owe the appellee anything. How could appellee be convicted of perjury, he testifying to one state of facts, and appellant to another, and the jury believing appellee? Appellant gives no reason for his non-appearance at the inquest. Were he present there, it might be appellee would not have ventured upon perjury, to sustain his claim. But suppose there was an issue between them, and on trial before a jury, and the parties were the only witnesses, could a court of equity interfere to set aside a judgment, whichever way it might be, in such a case? We apprehend not.

As a general principle, it may be said that a court of equity will not relieve against the neglect of a party in a suit at law, who has not made a proper defense, if he, knowingly, had a day in court. Owens v. Ranstead, 22 Ill. 161. This appellant had a day in court on the...