Blair v. Reading

• Decision Date: 30 September 1881
• Parties: NOVEL BLAIRv.JAMES N. READING et al.
• Court: Illinois Supreme Court

99 Ill. 600

1881 WL 10586 (Ill.)

NOVEL BLAIR

v.JAMES N. READING et al.

Supreme Court of Illinois.

Filed at Ottawa May 14, 1881.Rehearing denied September Term, 1881.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the Second District;-- heard in that court on appeal to the Circuit Court of Grundy county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Novel Blair, plaintiff in error, brought to the March term, 1876, of the Grundy county circuit court, a bill in chancery against James N. Reading, Lyman B. Ray, John Schroder and Henry L. Miller, defendants in error, alleging an indebtedness from Reading and Ray to complainant, on various accounts and in divers amounts, and praying for an account; and also charging that a certain judgment obtained by Ray against complainant for $2569.20, was obtained upon a fictitious indebtedness, and asking the same to be set aside as fraudulent and void, and that all proceedings under it be perpetually enjoined, and also praying that a certain chattel mortgage, given to secure the same fictitious indebtedness, be set aside and declared null and void, etc.

It appears, from the evidence, that Novel Blair and his son, Benjamin P. Blair, persons of color, about the 1st of January, 1871, leased a farm of James N. Reading, and moved upon it with their effects, and carried on a rather extensive farming business for a number of years. On the 8th of February following, Benjamin P. Blair executed to James N. Reading a note for $450, due two years after date, and secured it by chattel mortgage on the personal property on the farm. In March, 1872, the Blairs took up this note by executing another signed by both of them, and secured in the same way. This latter note was made payable to Ray, a merchant, and son-in-law of Reading, who, as the latter claims, had an interest in the note on account of goods furnished and to be furnished the Blairs. On June 1, 1872, this note and mortgage were taken up and new ones given, in which the amount of indebtedness was increased to $1331.11, which, in their turn, on May 12, 1873, were taken up and a new note and chattel mortgage given by Novel Blair alone, for $2569.20, with a power of attorney annexed to the note to confess judgment. This last note was made payable to Ray one day after date, and, as is claimed by defendants in error, was given for the benefit of Ray, Reading and Miller. On May 25, 1875, Ray confessed a judgment on the notes last mentioned, and placed an execution issued thereon in the hands of Schroder, as sheriff, to execute. Schroder took possession of a large amount of the mortgaged property, which Novel Blair replevied on the 8th of February, 1876. A lot of corn, amounting to 1400 bushels, was also levied upon as the property of Blair, which was also replevied by Lawrence & Hill, who claimed as assignees of Blair. On the 18th of March, 1876, the above mentioned judgment was opened, and Blair was permitted to plead to the merits. An injunction, upon the application of Blair, was awarded, restraining defendants in error from proceeding in any manner under said judgment or chattel mortgage. On the 23d of the same month Ray filed a cross-bill in the cause, making Novel Blair, James N. Reading and Henry L. Miller parties, praying for a decree for amount of the judgment on the note, and a return of the mortgaged property, etc. The cause was referred to a special master, to take and report the proofs. On the 8th of December, 1876, Blair filed an answer to Ray's cross-bill, denying most of the material charges contained in it, and on the same day the cause was set for hearing at chambers on the 18th of the month, by consent of parties.

On the convening of the parties and the judge on the 18th, pursuant to this arrangement, Novel Blair, by a written motion, sought formally to dismiss his bill as to James N. Reading, but the judge refused to allow the dismissal, and afterwards, on the 21st, against the objections of Blair, permitted Reading to file a cross-bill in the cause, and thereupon a rule was entered against Blair to answer the same by half-past one o'clock of the same day. Blair complied with the rule, under protest, by filing a general denial of the matters set up in the cross-bill. Exceptions having been sustained to his answer, he was ruled to make further answer instanter, and on his failure to do so he was called and defaulted, and a decree pro confesso entered against him.

Without any other hearing or further steps being taken in the case, at the March term, 1877, a formal decree was entered, based upon the foregoing hearing at chambers, and the several interlocutory orders and pleadings filed pending such hearing, dismissing Blair's original bill and granting relief upon Ray's cross-bill substantially as prayed. The court also rendered a personal decree against Blair on Reading's cross-bill for $261, on account of an individual debt alleged to be due Reading, for which a decree pro confesso had already been rendered in vacation, as above stated, it being the only relief granted under it. The cross-bill of Reading contains no averment showing that the claim for which this decree for $261 was rendered, was in any manner connected with the matters being litigated in the original bill.

On appeal to the Appellate Court the foregoing decree was affirmed, and plaintiff in error brings the record to this court for review.

The tenth assignment of errors in the Appellate Court was: “The record and proceedings aforesaid are otherwise uncertain, unjust and illegal.”

Mr. W. T. HOPKINS, and Mr. A. W. BULKLEY, for the plaintiff in error:

The circuit court erred in not permitting complainant to dismiss his bill as to defendant Reading. The complainant, at any time prior to a decree, has the right, unless a cross-bill has been filed, to dismiss his bill as a matter of course. Curtis v. Lloyd, 4 M. & C. 194; Simpson v. Brewster, 9 Paige, 245; 1 Dan. Ch. Pr. (5th Am. ed.) 793; Mohler v. Wiltberger, 74 Ill. 163.

The circuit court erred in permitting Reading to file his cross-bill at the time and in the manner as shown by the record. The proper time for filing a cross-bill, when such bill is necessary, is at the time of putting in the answer to the original bill, and before the issue is joined by the filing of a replication. Irving v. DeKay, 10 Paige, 319; Braman v. Wilkinson et al. 3 Barb. 151; Wiley et al. v. Platter, 17 Ill. 538; Roberts v. Peavey, 9 Foster, 392; Aylet v. Easy, 2 Ves. Sr. 336; Cartwright v. Clark, 4 Metc. 104; Barb. Ch. Pr. (2d ed.) vol. 2, p. 130.

A cross-bill is treated as an auxiliary suit, or as a dependency upon the original suit, and may be sustained only on matter growing out of the original bill. Daniel v. Morrison, 6 Dana, 186; Rutland v. Paige, 24 Vt. 181; Rubber Co. v. Goodyear, 9 Wall. 807; Ayres v. Carver et al. 17 How 591; Story's Eq. Pl. (8th ed.) sec. 398.

If a cross-bill seeks relief, it must be equitable relief. Story's Eq. Pl. secs. 398-629; Calverly v. Williams, 1 Ves. Jr. 211; Toby v. Foreman, 79 Ill. 489.

The decree is erroneous in several respects. It assumes control of the suits at law, and directs the steps to be taken. The judgment at law against Blair is left in full force, and he is required to return the property given to secure the debt on which it is based, without any provision that its proceeds shall apply upon the judgment. See Hubbard v. Hobson, Breese, 195.

If the defendants have not incurred any expense about the dissolution of the injunction, separable from and not properly chargeable as the necessary expenses incurred by them in obtaining the relief sought under their cross-bills, then they have sustained no damages, and should be awarded none. Alexander v. Colcord, 85 Ill. 328; Collins et al. v. Sinclair et al. 51 Id. 330; Elder et al. v. Sabin et al. 66 Id. 131; Steele et al. v. Thatcher, 56 Id. 258; Jevne & Alimini v. Osgood et al. 57 Id. 346.

Messrs. HILL & DIBELL, for the defendants in error:

An order of dismissal can not be entered except in term time. Consent can not confer jurisdiction, nor authorize a judge in vacation to exercise the powers of a court. Bancroft v. Eastman, 2 Gilm. 264.

Until the recent statute of 1874, (ch. 37, sec. 32,) conferring the power to hear and determine motions to dissolve injunctions in vacation, judges out of term had no power to vacate orders granting writs of injunction or to dissolve an injunction. Welch v. People, 38 Ill. 20.

The defendant Ray had filed a cross-bill long before the attempt to dismiss, and under the statute no dismissal could be had without consent. Sec. 36, ch. 22, Rev. Stat. 1874.

If the right of dismissal exists after the filing of a cross-bill, it would operate to carry with it the cross-bill, the latter being regarded as a mere adjunct, and all constituting but one suit. Fleece v. Russell, 13 Ill. 32; Elderkin v. Fitch, 2 Ind. 90; Slosson v. Wright, 14 Vt. 208; Reed v. Kemp, 16 Ill. 448.

Conceding that the judge's orders in vacation were void, still Reading's cross-bill was properly filed, for a cross-bill is a matter of right, and may be filed at any time after answer, either in term time or in vacation, and without leave. Jones v. Smith, 14 Ill. 229; Wiley v. Platter, 17 Id. 540; Beauchamp v. Putnam, 34 Ill. 578.

Taking default after answer filed harms no one, if the record shows the final hearing was on the answer of the defendant so irregularly defaulted. Hawke v. Snydacker, 86 Ill. 202.

The judgment by confession for $2574 was properly confirmed. The judgment had never been vacated, but only opened with leave to plead, and therefore still stood as a valid judgment and lien. Lake v. Cook, 15 Ill. 355. It was necessary to protect the officer levying in a suit by a stranger, to show a valid judgment upon which the writ issued. Hartman v. Cochrane, 2 Bradw. 594; Johnson v. Holloway, 82 Ill. 335.

Although a party may have several remedies, he can have but one satisfaction. Vansant v. Allison, 23 Ill. 33; West...