Beams v. Denham

• Citation: 3 Ill. 58,2 Scam. 58,1839 WL 2863
• Parties: MANNING BEAMS and HIRAM ARCHERv.GEORGE DENHAM and NATHANIEL BUCKMASTER.
• Decision Date: 31 December 1839
• Court: Supreme Court of Illinois

2 Scam. 58

3 Ill. 58

1839 WL 2863 (Ill.)

MANNING BEAMS and HIRAM ARCHER

v.GEORGE DENHAM and NATHANIEL BUCKMASTER.

Supreme Court of Illinois.

December Term, 1839.

This cause was heard in the court below, at the February term, 1839, before the Hon. Sidney Breese.

S. T. LOGAN, J. GILLESPIE, and SMITH, for the appellants.

A. COWLES and J. M. KRUM, for the appellee, contended, 1. That such negligence was shown by the complainants, that they were not entitled to the interposition of a court of chancery. 1 Johns. Chan. 465; 2 Johns. Chan. 228; 3 Johns. Chan. 351; 6 Johns. Chan. 87, 497.

2. That courts of equity will not interfere to grant new trials except in extraordinary cases, of which this is not one. 3 Johns. Chan. 275; 6 Johns. Chan. 235; 7 Johns. Chan. 174; 14 Johns. 63.

3. That upon a cause submitted upon bill and answer, it is competent not only to dissolve the injunction, but to dismiss the bill. Edwards v. Beaird, Breese 41.

4. That the judgment for the penalty of the bond was correct, if on proof the value of the property was found equal to it. 2 Tidd's Pract. 800-1; 1 Chit. Plead. 134-5.

LOCKWOOD, Justice, delivered the opinion of the court:

Beams and Archer filed their bill in chancery in the Madison circuit court, setting forth, among other things, that Buckmaster, for the use of Denham, had commenced an action against Beams and Archer on a replevin bond; that shortly before the term of the court to which the writ in the action on the replevin bond, to wit, August term, 1838, was returnable, Beams, one of the complainants, and who was the principal in the bond, became sick and unable to attend the court. That he sent an agent to court to attend to his suit; that said agent called upon the attorney for the plaintiff in the suit on the replevin bond, who informed said agent, in view of the circumstances of the case, that said suit should be continued; that notwithstanding said agreement to continue the cause, the plaintiff proceeded to take a judgment by default at the August term, 1838, and executed a writ of inquiry in which the damages were assessed at $600, being the whole amount of the penalty of the bond, and which sum they allege they are not justly or equitably bound to pay. The bill further states, that complainants do not mean to charge the attorney for the plaintiff in said suit with fraud in taking the judgment by default, but suppose that the judgment by default was taken by mistake or forgetfulness, in consequence of pressing and multifarious business.

The bill prays for an injunction, and that in consideration of the premises, that the court will award complainants a new trial.

An injunction was allowed, and at the time the summons was made returnable, the defendants demurred to a part of the bill, and pleaded to other parts. Denham also filed an answer, denying the equity of the bill.

The defendants, by their counsel, thereupon moved the court below to dissolve the injunction, which motion being argued, the court dissolved the injunction, dismissed the bill, and ordered the complainants to pay damages and costs.

The assignment of errors questions the power of the court, on a motion to dissolve an injunction, to dismiss the bill and give costs.

By the 14th section of the “act prescribing the mode of proceeding in chancery,” (R. L. 123; Gale's Stat. 142) it is enacted that “replications shall be filed within four days after answer, if such answer be put in in term time; or if in vacation, then the plaintiff or his attorney shall have notice of the filing of his answer and which shall be general, and all parties shall have the same advantage as if they were special; and after replication filed, the cause shall...