Walker v. Kretsinger

• Court: Illinois Supreme Court
• Writing for the Court: WALKER
• Citation: Walker v. Kretsinger, 48 Ill. 502, 1868 WL 5158 (Ill. 1868)
• Decision Date: 30 September 1868
• Parties: MARTIN O. WALKERv.GEORGE KRETSINGER et al.

48 Ill. 502

1868 WL 5158 (Ill.)

MARTIN O. WALKER

v.GEORGE KRETSINGER et al.

Supreme Court of Illinois.

September Term, 1868.

APPEAL from the Superior Court of Chicago; the HOL JOHN A. JAMESON, Judge, presiding.

The facts in this case are fully presented in the opinion.

Messrs. JEWETT & JACKSON, for the appellant.

Messrs. JONES & GARDNER, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a suit in chancery, commenced by appellant, in the Superior Court of the city of Chicago, for an injunction to stay the collection of a judgment in that court, and for a new trial at law in the case in which the judgment was obtained.

The bill alleges that, in the autumn of 1856, appellant and Guy H. Cutting were engaged in the wood and coal business; that Cutting contracted with Hughes for dockage for their coal, and that it might remain on his dock until the 1st of May, 1867, at the rate of fifty cents per ton; that they placed upon the dock about 500 tons of coal, which was removed in part, from time to time, until the 15th of May, 1867, at which time it had all been removed; that in the spring of 1867, appellant and Cutting purchased of Hughes 480 1/2 cords of wood, then on the dock, with the agreement that it might so remain until the first of the next July, without charge; that subsequently to this purchase, Hughes leased the dock to appellees, to commence the 1st of May of that year, and they then took possession of the dock, but that when they took the lease they knew of the arrangement existing between Hughes and appellant and Cutting in reference to dockage; that they afterwards came to the agent of appellant and Cutting, who was removing the coal from the dock, and requested that he would remove the wood first, instead of the coal, as they intended to build where it lay on the dock, and promised that if the wood should be so removed, the coal might remain on the dock until the 1st of July, 1867, being the time when the wood was to be removed; and that, solely for the accommodation of appellees, the wood was removed.

That afterwards, on the 25th of June, 1867, appellees commenced suit against appellant and Cutting, in the superior court, claiming $500 for the dockage of the coal; that service was had, and on the 11th of September following, a default was rendered in the case and judgment entered againt appellant for $350 and costs, and that execution had been issued for its collection.

That Cutting had the sole care and management of the wood and coal business; that all of the arrangements with Hughes were made by him; that after the service of process, Cutting informed appellant that he had consulted attorneys in reference to a defense; that in August, before the judgment was rendered, Cutting died; that complainant, relying upon what Cutting had said, supposed that a proper defense had been made, until after the default, and when it was too late to have it set aside; alleges that he has paid the dockage to Hughes, and if compelled to pay this judgment he will have twice paid for the dockage; that he has applied to appellees, but they refuse to permit the judgment to be set aside.

The answer was filed without oath, it having been waived. Appellees admit that appellant and Cutting were in the coal and wood business; admit that Hughes was in possession of the dock, but deny any knowledge of any transactions between Hughes and appellant and Cutting; that the dock is owned by Evans, under whom Hughes held the same; that in March, 1867, appellees purchased Hughes' unexpired term, and on the 1st of April took from Evans a new lease; that they paid Hughes and went into possession on the 7th of March, at which time there was a large amount of wood and coal on the dock, which they supposed belonged to Hughes, and agreed, in relation thereto, that they would allow Hughes the free use of the...