Kern v. Strausberger

• Decision Date: 31 January 1874
• Citation: 1874 WL 8688,71 Ill. 413
• Parties: STEPHEN KERNv.SAMUEL D. STRAUSBERGER et al.
• Court: Illinois Supreme Court

71 Ill. 413

1874 WL 8688 (Ill.)

STEPHEN KERN

v.SAMUEL D. STRAUSBERGER et al.

Supreme Court of Illinois.

January Term, 1874.

APPEAL from the Circuit Court of Vermilion county; the Hon. OLIVER L. DAVIS, Judge, presiding. Mr. EDWARD H. BRACKETT, and Mr. LUKE REILLY, for the appellant.

Mr. C. M. SWALLOW, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This bill was for an injunction and relief against a judgment recovered by appellees, against appellant, in the county court of Vermilion county, by default.

The suit in the county court was brought against appellant, and a number of other persons, said to compose the firm of “Kern Brothers,” but service was had only on appellant.

It is alleged in the bill, the account upon which the action was brought had previously been paid by A. S. Kern, a member of the firm of Kern Brothers. A copy of the receipt taken is filed and made an exhibit in the cause.

On the question of diligence, it is alleged the summons was served on appellant, on the 7th day of January, 1873, to appear at the next ensuing term of the county court; that, as soon as he was served with process, he employed John P. Norvell, who is alleged to be a reputable attorney, but pecuniarily irresponsible, to conduct the defense of his cause; that he exhibited to his attorney the receipt against the claim, was assured by him it would constitute a complete bar to the action, and that he need not give himself any further trouble about the cause, as he would attend to it for him.

It is not alleged appellant gave any further personal attention to the defense of the suit, but relied wholly on the diligence of his attorney. He states he heard no more of the case until execution, which had been issued on the 18th day of February, was served on him. On the 24th day of February, he sued out a writ of error, and obtained a supersedeas from the circuit court. At the September term following, the cause was heard in the circuit court, the judgment of the county court affirmed, and immediately thereafter this bill was filed. The circuit court denied the motion for an injunction and dismissed the bill for want of equity. That decision is assigned for error.

The defense alleged to exist against the suit in the county court is shown to be complete at law, and had appellant made it in that court, it would, no doubt, have prevailed.

The right to relief is predicated on the distinct ground appellant, as soon as he was served with process, employed competent counsel to defend the suit, and that he was guilty of no laches in relying on the diligence of his attorney.

There are courts of the highest authority which have held the doctrine contended for, that relief may be decreed in such cases where it is alleged, as in this case, the attorney, whose negligence caused the injury, is insolvent, and a suit against him would be unavailing. To this effect is Herbschman v. Baker, 7 Wis. 542.

Counsel cite Griggs v. Gear, 3 Gilm. 2, in support of their view of the law, but we do not think it is an authority in point. Relief was granted for the reason the attorney had entered the appearance of the complainants in a cause without any authority whatever. Without any knowledge of the pendency of the suit, a decree was subsequently rendered against them for $36,000. It being shown the attorney was insolvent, it was held the complainants were equitably entitled to relief. That case is very different in its facts from the one at...