Chicago v. Field

• Citation: 86 Ill. 270,1877 WL 9712
• Parties: CHICAGO, DANVILLE AND VINCENNES RAILROAD COMPANYv.CORNELIUS R. FIELD et al.
• Decision Date: 30 September 1877
• Court: Supreme Court of Illinois

86 Ill. 270

1877 WL 9712 (Ill.)

CHICAGO, DANVILLE AND VINCENNES RAILROAD COMPANY

v.CORNELIUS R. FIELD et al.

Supreme Court of Illinois.

September Term, 1877.

APPEAL from the Circuit Court of Cook County; the Hon. E. S. WILLIAMS, Judge, presiding.

This was a bill in equity in the circuit court of Cook county to enjoin the collection of a judgment and enforce a set-off against it. A demurrer to the bill was overruled and a rule to answer entered, with which the defendants failed to comply, electing to stand by their demurrer; whereupon a final decree was rendered granting the relief prayed, and the defendant appealed.

The bill, filed on December 28, 1874, shows that on April 12, 1873, the defendant, the Chicago, Danville and Vincennes Railroad Company, recovered a judgment against the complainants in the circuit court of Cook county, upon an indebtedness on their due-bill for the sum of $5,726.16, whereon execution was issued November 10, 1874, which the sheriff was about to levy; that before and at the time of the rendition of the judgment the defendant was, and still is, indebted to the complainants in the sum of $22,500 for commissions in respect of business transacted by them as financial agents and brokers for the defendant; that when the suit in which the judgment was rendered was brought and tried the railroad company was solvent; that complainants did not set up their said claims in said suit as a set-off, or otherwise, nor were they in any way litigated or involved therein, they confidently expecting to defeat the suit by other matters of defense which were set up and litigated therein; that the railroad company at the time of filing the bill was in a hopelessly insolvent condition, having become so since the month of September, 1873, over five months after the rendition of the judgment, and that complainants could not make or satisfy any judgment they might recover against the company on execution or otherwise; that, on application made, the company had refused to allow the judgment to be set off against their said indebtedness to the complainants; that on June 19, 1874, they brought suit in assumpsit against the railroad company on their said claims, in the circuit court of Cook county, which suit was pending and being prosecuted in good faith, complainants believing that they were justly entitled to recover therein the sum of $22,500, less the amount of said judgment.

Mr. E. WALKER, for the appellant.

Messrs. JUDD & WHITEHOUSE, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

It is the general rule, without doubt, as appellant's counsel affirms and cites authorities to show, that an injunction will not be granted against enforcing a judgment, when defense might have been made in the action at law, unless the judgment was obtained by fraud, accident, or mistake.

But this rule, we conceive, does not apply to the defense of set-off, but to such defenses as were required to have been made in the suit where the judgment was rendered. Statutes of set-off are passed for the benefit of defendants, and they are not imperative; so that a defendant may waive his right to set-off, and bring a cross action for the debt due to him from the plaintiff. 1 Chit. Pl. 602; Morton v. Bailey, 1 Scam. 213. Our statute of set-off, then, being permissive, but not compulsory, and a party defendant not being bound to set off his demand against the plaintiff's debt, as was said in the case cited, there would not seem to be any fault or neglect attributable to the appellees in not introducing their claims in set off against the plaintiff's demand in the suit wherein the judgment was rendered.

And if not, then we do not perceive why the mere fact that the claims existed at the time of the institution of that suit, and might have been set off therein, should militate against the present claim for relief in respect of the judgment. We see no sufficient reason why they should be discriminated against, and be held to differ, as entitling to relief, from any other demands, say, of a nature which could not have been set off in that suit, or which accrued subsequently to the judgment; at least where, as here, the ground of equitable jurisdiction arises after judgment, and a plausible reason is offered for not making the set-off in such suit.

There is a natural equity that cross demands should be offset against each other; and that the balance only should be recovered; and the court of chancery recognizes this principle and acts upon it in case...