Heckling v. Allen

Decision Date01 January 1882
PartiesHECKLING, EX'X, v. ALLEN.
CourtU.S. District Court — District of Colorado

M. B Carpenter, for defendant.

S. P Rose, for plaintiff.

HALLETT J.

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. 295; Spafford v. Janesville, 15 Wis. 526.

The rule was enforced in this court in a case in which, after the term in which judgment was entered, the parties agreed to vacate it, but failed to carry out the agreement within the time limited by them. Newman v. Newton, 3 Colo.Law Rep. 193; (S.C. 14 F. 634.)

But as to matters arising after judgment, or before judgment and too late to be presented as a defense in the action, the rule appears to be different; as, that the defendant was discharged under an insolvent act on the day judgment was entered, (Baker v. Judges of Ulster, 4 Johns. 191;) that the defendant became bankrupt after the cause of action accrued, and obtained a certificate after judgment, (Lister v. Mundell, 1 Bos. & P. 428;) that an agreement relating to the manner of paying the judgment has been made, (Cooley v. Gregory, 16 Wis. 322;) that an act forbidden by injunction has become lawful since the decree was entered, (Pennsylvania v. Wheeling Bridge Co. 18 How. 421: Wetmore v. Law, 34 Barb. 515.)

'When the case is such that the defendant ought to have relief, his remedy is a direct proceeding to get rid of the judgment either by setting it aside or obtaining an order for a perpetual stay of proceedings. This relief is granted in a summary way, on motion, by the court in which the judgment was rendered, and upon such terms as the justice and equity of the case may require. If the judgment was irregularly entered, it will be set aside and the defendant allowed to plead his defense. In cases where he has had no...

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7 cases
  • Boynton v. Chicago Mill & Lumber Company
    • United States
    • Arkansas Supreme Court
    • October 28, 1907
    ...the rendition of the decree in the present suit, such reversal constitutes a recognized cause for bill of review. 2 Beach, Mod. Eq. 882; 15 F. 196; 38 Wis. 107; on Judg. § 333. A decree based in whole or in part on a plea of res judicata Will be reversed on appeal when, pending such appeal,......
  • Cross v. Gould
    • United States
    • Missouri Court of Appeals
    • May 12, 1908
    ...St. 544; Whereat v. Ellis, 70 Wis. 207, 5 Am. St. 164; Morrill v. Morrill, 20 Ore. 96, 23 Am. St. 95, and note and cases cited; Hinkling v. Allen, 15 F. 196; Strom v. School Dist., 45 Minn. V. L. Drain and Dysart & Mitchell for respondents. If the judgment is attacked and sought to be set a......
  • Kleven v. Mrozinski (In re Mrozinski)
    • United States
    • U.S. Bankruptcy Court — Northern District of Indiana
    • March 11, 2013
    ...867 F.2d 996, 1001 (7th Cir.1989); Oliver v. City of Shattuck ex. rel. Versluis, 157 F.2d 150, 153 (10th Cir.1946); Heckling v. Allen, 15 F. 196, 198 (C.C.D.Colo.1882). See also, Lovejoy v. Murray, 70 U.S. 1, 7, 3 Wall. 1, 18 L.Ed. 129 (1865) (discussing the writ of audita querela). Consequ......
  • Stevens v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • October 4, 1972
    ...case law of other jurisdictions reflects the use of a post-judgment stay of execution in a situation such as this. (See Heckling v. Allen (C.C.Colo.1882) 15 F. 196; Ebner v. Steffanson (1919) 42 N.D. 229, 172 N.W. 857, 5 A.L.R. 1261; Piedmont & Arlington Life Ins. Co. v. Ray (1881) 75 Va. 8......
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