Higgins v. Bullock

• Decision Date: 30 September 1874
• Citation: 73 Ill. 205,1874 WL 8956
• Parties: JOHN HIGGINSv.W. M. BULLOCK.
• Court: Illinois Supreme Court

73 Ill. 205

1874 WL 8956 (Ill.)

JOHN HIGGINS

v.W. M. BULLOCK.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Woodford county; the Hon. JOHN BURNS, Judge, presiding.

Messrs. CLARK & ELWOOD, and Messrs. BELL & GREEN, for the appellant.

Messrs. BRIGGS & MEEK, Messrs. BANGS & SHAW, and Mr. ROBERT B. EDWARDS, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in chancery, brought by appellant against appellee, to enjoin the collection of a judgment recovered in the circuit court of Woodford county, at the August term, 1870, in favor of appellee, against appellant and Elisha Wright.

At the August term, 1874, of the circuit court of Woodford county, on motion of appellee, the injunction was dissolved and the bill dismissed, and the damages of appellee were assessed by the court at the sum of $50.

The dissolving the injunction, dismissing the bill and assessment of damages are assigned for error.

On the motion to dissolve the injunction, the averments of the bill are to be taken as true. The question then arises, conceding the facts averred in the bill to be true, are they sufficient to authorize a court of equity to grant the relief claimed?

In deciding this question, it will not be necessary to consider all the allegations of the bill. Although the judgment may be unjust, and appellant may have had a complete defense to the note upon which it was rendered, yet, if he had an opportunity to make his defense in the action at law, and, by his own neglect, failed to appear on the return day of the summons, and interpose a defense, he can not be permitted to go into a court of equity and make that defense availing. There is no pretense that the summons was not properly issued and placed in the hands of the sheriff of Wabash county, where appellant resided, for service upon him. But the substance of the averments is, that appellant was misled by the sheriff.

The allegation in the bill is as follows: “That the summons in said suit was sent by appellee, or his attorneys, to the sheriff of Wabash county, at that time one Isaac Ogden, to be served on appellant, or on some man in the county of appellant of the name of John Higgins, and appellant alleges that there were at least two men, residents of said county at that time, of that name; that the said Ogden called on appellant and inquired of him whether or not he was the John Higgins who was sued in Woodford county jointly with one Elisha Wright, or whether it was another John Higgins who lived in Wabash county, or the John Higgins who lived in the adjoining county of Richland; that appellant examined the summons, and, finding the name of Elisha Wright associated, and knowing that he had no acquaintance with any man of that name, and that he never, at any time, with such a man, had joint dealings with appellee or any one else, whereby he had jointly contracted with said Elisha Wright to pay the appellee or any one else any sum of money that could have gone into the hands of appellee, appellant very naturally concluded that he was not the John Higgins named in said summons, and so told the said Ogden; and the said Ogden professed to have come to a like conclusion, and so expressed himself to appellant; and appellant alleges that, at the time he and the said Ogden parted, the said Ogden informed appellant that he would call on the other John Higgins, resident of Wabash county, and if he should know nothing touching the subject matter of said suit, he would notify appellant before making a return of said...