Heeney v. Alcock
| Decision Date | 31 October 1881 |
| Citation | 9 Ill.App. 431,9 Bradw. 431 |
| Parties | BERNARD HEENEY ET AL.v.WILLIAM H. ALCOCK ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the County Court of Cook county; the Hon. MASON B. LOOMIS, Judge, presiding. Opinion filed November 7, 1881.
Messrs. SCHUYLER & FOLLANSBEE, for appellants; that the application was made in apt time, cited Burwell v. Orr, 84 Ill. 465; Wymans v. Yeomans, 84 Ill. 403.
Upon the right to have the judgment opened and defendants let in to a defense upon the merits: Lake v. Cook, 15 Ill. 353; Hall v. Jones, 32 Ill. 38; Pitts v. Magie, 24 Ill. 610; Condon v. Besse, 86 Ill. 159; Walker v. Ensign, 1 Bradwell, 113.
The note was given for a gambling contract, and was illegal: Pickering v. Cease, 79 Ill. 328; Lyon v. Culbertson, 83 Ill. 33; Webster v. Sturges, 7 Bradwell, 560.
One partner cannot execute a warrant of attorney to confess judgment so as to bind his co-partner, in the absence of express authority: Sloo v. State Bank, 1 Scam. 428; Peine v. Weber, 47 Ill. 41; Remington v. Cummings, 5 Wis. 138; Crane v. French, 1 Wend. 311; Davis v. Blackwell, 5 Bradwell, 32; Parsons on Partnership, 178.
A note executed by one partner outside the scope of the partnership business, without consent of his co-partner, is not binding upon the co-partner: Zuel v. Bowen, 78 Ill. 234; Wittram v. Van Wormer, 44 Ill. 525.
Mr. FRANK H. COLLIER, for appellees; that to make such contract illegal, there must be a mutual intent to bet upon the market without any expectation of actual performance, cited Clarke v. Foss, 7 Biss. 540.
No equitable reason is shown why the court should disturb the judgment: Knox v. Winsted Savings Bank, 57 Ill. 330; Rising v. Brainerd, 36 Ill. 79.
Application after the term at which judgment was rendered, has passed, comes too late. The plaintiffs are now asking for equitable relief when they had a legal remedy by motion at the judgment term: Saltsman v. Bissell, 75 Ill. 67; Palmer v. Gardiner, 77 Ill. 143; Railroad Co. v. Neal, 1 Woods, 353; Crim v. Handley, 4 Otto, 652; Lyrne v. Allen, 51 N. H. 245; Borland v. Thornton, 12 Cal. 445; Chalmers v. Hack, 19 Me. 127.
This appeal is prosecuted to reverse the judgment of the county court, overruling appellant's motion to vacate a judgment entered by confession, or to stay proceedings under the judgment, until a trial can be had upon the merits. The note and warrant of attorney which was under seal, were executed in the name of “Heeney & Son,” the note being dated February 23, 1881, payable to appellees on demand, after date.
Upon the hearing of the motion, affidavits of both the appellants were read, in support of the motion, tending strongly to show that the note was not given for any indebtedness of the firm of Heeney & Son, but that it was given by John B. Heeney in settlement of an alleged indebtedness of the latter, for the balance due on certain gambling transactions, on the board of trade of the City of Chicago; that said transactions were entirely outside the scope of the co-partnership business of Heeney & Son, and without the knowledge or consent of Bernhard Heeney; that the name of Heeney & Son, was used without any authority whatever of Bernhard Heeney; that the transaction was the individual business of John B. Heeney, and was entirely unknown to Bernhard Heeney, and that judgment was entered for a larger amount than the balance alleged to be due.
The statements in these affidavits were controverted by the affidavits of appellees, in which they deny that the transaction was of a gambling character, and they allege, on the contrary, that the note in question was on a straight business transaction; that Heeney & Son, through John B. Heeney, directed them to purchase a quantity of ribs for April delivery, which they actually bought; that they had no knowledge that the ribs were not to be delivered, or were to be turned into May delivery, as alleged by appellants; that they never transacted any business for John B. Heeney individually, but only for Heeney & Son; and that the transaction in question was well known to Bernhard Heeney, and was ratified and approved by him.
Judgment was entered on the second day of March, 1881, which was one of the days of the February term of the county court. Knowledge of the fact that the judgment had been entered, first came to appellants through their attorney, on Thursday, March 10th, during the February term. On the fifteenth day of March, which was the second day of the March term, application was made to vacate or open the judgment as above stated.
The doctrine has long been settled in this State, that courts of law are invested with an equitable jurisdiction over judgments entered by confession on warrants of attorney. Lake v. Cook, 15 Ill. 353; Hall v. Jones, 32 Id. 38; Pitts v. Magie, 24 Id. 610; Burwell v. Orr, 84 Id. 465; Wyman v. Yeomans, 84 Id. 403; Condon v. Besse, 86 Id. 159; Walker v. Ensign, 1 Bradwell, 113; 69 Ill. 306; 46 Id. 280.
Where it clearly appears that the plaintiff was not entitled to judgment on the notes and warrant of attorney, the court should vacate the judgment, and leave him to pursue the ordinary remedy by action. But where the case is left in doubt, or the testimony is so contradictory that...
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