Palmer v. Bethard
| Decision Date | 31 January 1873 |
| Citation | 66 Ill. 529,1873 WL 8103 |
| Parties | JAMES Q. PALMERv.DAVID M. BETHARD et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Morgan county; the Hon. CHARLES D. HODGES, Judge, presiding.
This was a bill in chancery, by James Q. Palmer against David M. Bethard, Charles Sample and Benjamin Pyatt, to enjoin the collection of a judgment in favor of Bethard against complainant. The facts appear in the opinion. Messrs. MORRISON & WHITLOCK, and Mr. H. E. DUMMER, for the appellant.
Mr. WILLIAM BROWN, for the appellees.
The complainant filed his bill to set aside a judgment at law, and to state a partnership account. A demurrer was sustained and the bill dismissed.
The complainant alleged the formation of a partnership between him and the defendants in 1864, which continued until in 1866, when there was a partial settlement of the business of the firm, but no final settlement or balance struck; that the complainant placed the books and papers pertaining to the partnership, in the hands of the defendants; and that they made a settlement, and found that the complainant was indebted to Bethard; but, that the complainant was not present at the settlement, though he made an examination of the accounting and paid to Bethard $2000, and refused to pay any more. Bethard then instituted a suit at law against the complainant for the balance alleged to be due on the settlement. Two trials were had, and each time a verdict was rendered against the complainant. The last trial was in November, 1871.
It is then charged that the judgment is unjust, and the basis of the charge is, that, since its rendition, the complainant had discovered papers and entries in books which showed mistakes in the settlement, and that the judgment is erroneous and inequitable, and that the facts were not fully known to the complainant at the time of the trial. It is further alleged that he was not present at the time of the last trial, and that he was misled as to the time it would take place by the attorney of Bethard.
Though it is alleged in the bill that there was no final settlement, yet it is not alleged that proof can now be made of such fact. The only ground, therefore, for setting aside the judgment and granting a new trial, is the discovery subsequent to the last trial. No allegation is made of any diligence, or of any examination of the books and papers, previous to the trial at law, and no excuse is given why such examination was not had sooner, though four years and more had elapsed since the...
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