Miller v. Barto

• Decision Date: 09 December 1910
• Citation: 247 Ill. 104,93 N.E. 140
• Parties: MILLER v. BARTO et al.
• Court: Illinois Supreme Court

247 Ill. 104

93 N.E. 140

MILLER

v.BARTO et al.

Supreme Court of Illinois.

Oct. 28, 1910.

Rehearing Denied Dec. 9, 1910.

Appeal from Circuit Court, Cook County; Charles M. Walker, Judge.

Bill by Oscar C. Miller against Selena A. Barto and others. From a decree dismissing the bill, complainant appeals. Reversed and remanded, with directions.Lemuel M. Ackley, for appellant.

Ullmann & Hoag, for appellees.

CARTWRIGHT, J.

The circuit court of Cook county dismissed for want of equity the bill filed in that court by Oscar C. Miller, appellant, against Selena A. Barto, Mathias Muench, and others, appellees, for partition of a lot in Chicago, and the complainant appealed to this court.

The complaint claimed title to an undivided one half of the lot and that the defendant Selena A. Barto owned the other half, both having derived title by virtue of a sale on an execution issued upon a judgment in favor of Charles Baumann and against Mathias Muench, and the subject of controversy was the validity of that judgment, and whether a court of equity would sustain the sale made under it. Mathias Muench, one of the defendants, filed his cross-bill alleging that the judgment was founded on no consideration and was inequitable; that he was in possession of the premises, and that the complainant and Selena A. Barto had full notice and knowledge of such facts. The abstract does not show that the court made any disposition of the cross-bill. Muench and the holder of a mortgage answered, and the other defendants, including Selena A. Barto, were defaulted and the evidence was heard by the court. The facts on which the court acted are as follows:

Charles Baumann was a sailor on the lakes, and, when not following his occupation, he boarded at the home of Mathias Muench, coming and going from time to time. He was drunk most of the time, and would do some chores about the house, like wiping dishes, and once cleaned up an empty flat. He never paid anything for his board, and was given small sums for services rendered and spent the same for beer. In 1902, after Muench had married a second wife, she would not have Baumann around and turned him out, and, although he had no claim, he made a bargain with the complainant, Oscar C. Miller, an attorney, to sue Muench for services. Baumann and Miller were to each have one-half of what could be recovered after deducting costs and expenses, and Miller made an agreement with Lemuel M. Ackley, another attorney, by which Ackley was to receive a portion of the amount eventually recovered. Suit was brought in the superior court on July 31, 1902, and Muench was served with summons on August 16, 1902. Muench was ignorant of the English language, and did not know that he was sued or served with process. At the September term of the court Muench was defaulted, and judgment was rendered against him for $1,050 and costs. He was told of the judgment by a friend, and employed an attorney, who filed a written appearance for him in the cause, and moved the court to vacate the default and judgment. The motion was continued until the next term, when it was stricken from the files for want of ‘due appearance,’ from which order Muench prayed an appeal to the Appellate Court, but did not perfect it, being advised to go into bankruptcy and get rid of the judgment in that way. Execution was issued on the judgment on November 8, 1902, and on demand of the sheriff Muench made a schedule showing personal property, consisting of teams, wagons, and harness, subject to a chattel mortgage. On December 8, 1902, he filed his voluntary petition in bankruptcy in the United States court, and on the 11th of that month was adjudged a bankrupt and on the same day the sheriff levied on the lot. On January 2, 1903, the sheriff was enjoined by the bankruptcy court from selling under the execution. But two claims were filed in bankruptcy-one of $64.48 for groceries and the other was this judgment. Baumann testified before the referee that he had no claim against Muench; that he did a few chores about the house, and would be given five or ten cents, which he would spend for beer; that he was drunk, and the second wife expelled him from the premises; and that he brought suit to get even with Muench. The referee reported that the claim was not meritorious, and it was disallowed. No trustee was ever appointed, and Muench remained in possession of his property and was discharged on November 7, 1904. On May 25, 1906, the sheriff returned the original execution issued in 1902, stating that he had levied on the lot but made no sale, and alias execution was then sued out and a levy made and the property was sold July 17, 1906, for $1,150 to Selena A. Barto, who was represented at the sale by Lemuel M. Ackley. The costs were paid and a shift was planned by which the plaintiff's attorney receipted for $1,108.90 on the judgment; Selena A. Barto not paying anything. At the expiration of the time of redemption, the sheriff made a deed to Selena A. Barto, and on December 30, 1907, she quitclaimed an undivided one-half of the lot to Oscar C. Miller, the attorney. Immediately afterward Miller filed the bill in this case for partition, and the claim for groceries had been assigned to him and he had released the lot from that claim. The rights of third parties have not intervened, and there was no basis in fact for the judgment.

Courts of equity have so often granted relief against judgments obtained by fruad, accident, or mistake, where there has been no negligence on the part of a defendant, that there can be no question of power or jurisdiction to afford a remedy in such a case. If it is against conscience to execute a judgment and the defendant was prevented from making his defense by fraud or accident unmixed with any fault or negligence in himself or his agents, and the rights of third parties have not intervened, equity will relieve against the wrong. Hilt v. Heimberger, 235 Ill. 235, 85 N. E. 304. A court of equity, however, will not give ear to one who merely asks it to relieve him from the consequences of his own negligence or that of his agents. A court of equity is only moved to action by diligence, and does not interpose to protect one who has not exercised...