Hickey v. Stone
| Decision Date | 30 September 1871 |
| Citation | 60 Ill. 458,1871 WL 8171 |
| Parties | MICHAEL C. HICKEYv.ALFRED U. STONE et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Tazewell county; the Hon. CHARLES TURNER, Judge, presiding.
Mr. JOHN LYLE KING and Mr. WILLIAM DON MAUS, for the appellant.
Mr. C. A. ROBERTS and Mr. N. W. GREEN, for the appellees.
Alfred U. Stone, a resident of Tazewell county, in this State, brought an action of assumpsit in the circuit court of that county against Michael C. Hickey, the complainant herein, then a resident of Cook county, and recovered a judgment against him for the sum of one hundred and fifty dollars and costs, on which an execution was duly issued and placed in the hands of the sheriff of Cook county to execute.
The complainant filed his bill to enjoin proceedings under the execution, making Stone, the plaintiff in the action at law, and Fisher, the sheriff of Cook county, and Hendricks, his deputy, defendants to the bill.
An injunction was granted on the allegations that complainant was not indebted to Stone, nor was he under any legal liability to him; that no summons or other process was ever served upon him to appear and answer to the action, nor did he know that an action was pending against him at the suit of Stone, which, if he had known, he would have appeared and defended against it; and that the first intimation of the suit was the execution in the hands of the sheriff, and that the judgment was obtained by fraud and imposition on the court rendering it; and the further allegation, if a summons issued against him, and was returned served, that the same is untrue and was made by mistake or fraud.
The prayer of the bill is, that unless Stone consents to vacate this judgment, with leave to complainant to plead any and all defenses, he be enjoined from any further proceedings on the judgment.
An affidavit of Stone appears in the record, as having been filed on the 28th of March, 1870, the day the writ of injunction was awarded, in which he states the time when the suit at law was commenced by him, the return of the first summons not served, and of an alias summons returned served on complainant by the proper officer, on the 31st of August, 1869, and stating further, the indebtedness of complainant, and that the judgment is just, and denies all matters and things in the bill alleged, in conflict with the statements in the affidavit.
At the June term, 1870, a motion was made by defendant Stone, to dissolve the injunction, and the same was dissolved, and damages assessed and the bill dismissed. To reverse this decree, complainant appeals.
The first remark we deem it proper to make, is as to the affidavit made by appellee out of court, and brought into the record. We are not advised of any practice in a court of...
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...supra, it is not conceivable how the learned judge could cite the earlier cases in Illinois of Owens v. Ranstead, 22 Ill. 161, Hickey v. Stone, 60 Ill. 458, and Weaver v. Boyce, 79 Ill. 417, and upon their authority put Illinois in the list of states that hold to the doctrine contended for ......
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