Peter Bressler Et Ux. v. Mccune

• Decision Date: 30 September 1870
• Citation: 1870 WL 6565,56 Ill. 475
• Parties: PETER BRESSLER et ux.v.WILLIAM MCCUNE et al.
• Court: Illinois Supreme Court

56 Ill. 475

1870 WL 6565 (Ill.)

PETER BRESSLER et ux.

v.WILLIAM MCCUNE et al.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Whiteside county; the Hon. W. W. HEATON, Judge, presiding.

This was a suit in chancery, instituted in the court below by Peter Bressler and Sabrina Bressler, his wife, against William McCune and William A. Sanborn. An injunction which had been granted by the judge, at chambers, was afterward dissolved by an interlocutory order of the circuit court, and on a final hearing the bill was dismissed. Thereupon this appeal was taken by the complainants, who entered a motion in this court to revive the injunction.

Messrs. EUSTACE, BARGE & DIXON, and Mr. F. VANDERVOORT, for the appellants.

Messrs. SACKETT & BEAN and Mr. J. M. WALLACE, for the appellees.

Per CURIAM:

The complainants filed their bill against the defendants in the circuit court of Whiteside county. and prayed for an injunction. The bill was presented to the judge of said court, at chambers, and thereupon he made an order on the record for a temporary injunction. In pursuance of such order, a writ of injunction was issued by the clerk of said court, in due form, and was regularly served on the defendants. At the October term of said court the said defendants entered their motion to dissolve the injunction. This motion was not disposed of at that term of the court, but in vacation succeeding said term, the parties submitted affidavits and oral testimony on said motion. At the May term, A. D. 1870, on the 23d day of May, the court entered an order dissolving the temporary injunction. At the same term, on the 25th day of May, the parties, by their solicitors, submitted said cause to the court for final hearing. The court dismissed the bill for want of equity, and thereupon the complainants prayed an appeal, and perfected the same by filing their appeal bond in due form.

The appellants filed the record of said cause in this court, and now enter their motion to revive the injunction.

The rule on the question of injunctions, on records in this court, may be concisely stated, thus: In cases where the court below award a temporary injunction, which is continued to the final hearing, and is then dissolved and the bill dismissed, and the party prays for and perfects his appeal under the order of the court, such appeal suspends the decree dissolving the injunction, and, therefore, leaves it still in force. But, if the injunction is dissolved by an interlocutory order, and the cause afterward proceeds to a final hearing, such appeal will not revive the injunction.

This case falls within the latter clause of the rule.

After a careful examination of the record in this cause, the court is of opinion that the injunction awarded in the court below should be revived in this court until said cause can be heard. The injunction will, therefore, be revived on the said complainants giving bond, in the usual form, in the penal sum of $1,000, with security, to be approved by this court.

Injunction revived.

Upon a final hearing on the appeal, the following opinion was delivered:

Mr. JUSTICE SCOTT delivered the opinion of the Court:

On the 9th day of January, 1869, the appellant Peter Bressler, executed his note to the defendant Sanborn, for the sum of $8,093.77, and to secure the payment, Bressler and his wife executed a trust deed to the defendant McCune on certain real estate, a part of which was owned by the wife in her own right. The note was not paid at maturity, and McCune, at the instance of Sanborn, advertised the property under the provisions of the trust deed, and was about to sell the same.

The bill in this case was then filed, alleging error or mistake in the amount for which the note was given, stating a complicated course of dealing between the parties, involving a long bank account, the borrowing of money at different times on different kinds of securities, the purchase and sale of property, the giving of a large number of notes, in renewal and otherwise, by Bressler to Sanborn.

It is alleged in the bill that, during the time these transactions were occurring between the parties, Bressler was in such condition of health that his mind and memory were temporarily impaired, and to such an extent that, during said time, he was not in a fit condition to take charge of, or attend to, his financial affairs, but did, during that time, to a great extent, entrust the management of his business affairs to the care and control of the defendant Sanborn, and that Sanborn had, from time to time, complicated the affairs between himself and Bressler to a great extent by frequently and repeatedly causing him to give new notes, claimed to be in renewal or extension of other notes, and, at the same time, retaining the old notes for which the new notes were given in renewal or extension, and, in various other ways, so complicated their affairs that, at the time the note of the 9th of January, 1869, was given, Bressler did not know the true state of the accounts between them, and was in that condition of mind that he could be most easily and readily imposed upon.

When the answer of the defendant Sanborn was filed to the original bill, the appellants obtained leave and filed an amended bill, in which they stated the details of the transaction between the parties somewhat differently from the statements in the original bill. The same is also true of the answer of Sanborn to the amended bill. In his answer to the amended bill he states the transactions between himself and Bressler totally unlike his statements in his former answer to the original bill. Both answers were sworn to, although the oath was expressly waived. This fact itself is the strongest possible...