Wash. Parkinson v. Trousdale

• Decision Date: 31 July 1842
• Citation: Wash. Parkinson v. Trousdale, 3 Scam. 367, 4 Ill. 367, 1842 WL 3772 (Ill. 1842)
• Parties: Washington Parkinson, appellant,v.Alexander F. Trousdale, appellee.
• Court: Illinois Supreme Court

3 Scam. 367

4 Ill. 367

1842 WL 3772 (Ill.)

Washington Parkinson, appellant,

v.Alexander F. Trousdale, appellee.

Supreme Court of Illinois.

July Term, 1842.

Appeal from Madison.

While courts of equity will entertain a bill to set-off mutual debts by judgment, they will not extend this remedy to a case of unliquidated damages, the recovery of which is uncertain. ^a

Where a bill in chancery is dismissed by a complainant, “without prejudice,” he may still avail himself of all errors and exceptions appearing upon the record, antecedent to its dismissal. ^b

According to the general practice of courts of equity, a dissolution of an injunction is a matter of course, upon filing the answer; unless, in some instances, the bill is sustained by affidavits. ^c

Where a defendant in chancery submits to answer, he must respond to every material allegation in the bill.

The complainant filed his bill in chancery in the Madison Circuit Court, alleging that the defendant had recovered a judgment against him in said court, for $1,000, in an action for slander, and prayed that the collection of the judgment might be enjoined, until judgment should be rendered in an action for slander, and another for false imprisonment, which he had instituted against the defendant, in the same court, and that the damages he might recover in said actions might be set-off against said judgment. The bill also alleged the insolvency of the defendant, and that he would be in danger of losing his damages to be recovered in said actions, unless they could be set-off, and that he could prove his causes of action against the defendant; setting forth the particular facts he could prove. The defendant answered the bill, admitting the judgment, and the pendency of the suits, but denying that he was guilty of the grievances charged against him. He also denied his insolvency, and alleged that before the filing of the bill he had assigned one-half of the judgment, for a valuable consideration: Held, on exception to the answer, that it was sufficient; that it was not necessary to deny the particular facts which the complainant alleged he could prove to sustain his action, the general denial of guilt being sufficient; and that it was not necessary to answer whether the complainant would be in danger of losing the damages he might recover.

This cause was heard in the court below at the April term, 1842, before the Hon. Sidney Breese.

J. Gillespie and L. Trumbull, for the appellant, relied upon the following points and authorities:

If a defendant answers at all, he must answer fully: 2 Mad. Chan., 339, and authorities there cited. A defendant who submits to answer at all, must answer fully: 4 Johns. Ch. R., 205; 1 Johns. Ch. R., 65.

Where a party is not obliged to answer, he must object to answering by demurrer, and can not, by answering, object to answer: Selby v. Selby, 4 Bro. C. C., 12; 3 Mad. Ch. R., 70.

Admitting even that the bill did not authorize the awarding an injunction, the proper mode to take advantage of it was by demurrer; and the defendant having consented to answer, the court was bound to give the proper judgment upon the exceptions.

In case of torts, or debts that can not be set-off under the statute, if there be cross actions, the superior courts will allow one judgment to set-off against the other, and will sometimes even stay execution in an action till judgment has been obtained by the defendant therein, viz., a cross action, so as to enable the latter afterwards to obtain such set-off: 1 Chit. Gen. Pract., 667; 4 Bing., 16; 1 Bing., 435.

G. T. M. Davis, for the appellee.

SCATES, Justice, delivered the opinion of the court:

At the September term of the Madison Circuit Court, 1841, the defendant recovered of the plaintiff $1,000 damages, in an action for slander. At the same term the plaintiff filed his bill in chancery, and obtained an injunction, staying the collection of these damages. The bill prayed to have such damages as he might recover in an action for slander, and an action for malicious prosecution and false imprisonment, then pending in the same court, against the defendant, set-off against the defendant's damages, alleging his insolvency, and that the plaintiff would be in danger of losing, and would lose, his damages so to be recovered, unless they could be set-off in such manner. The bill also charged that the plaintiff could prove in the action of slander, the speaking of actionable words by defendant, and that he prosecuted plaintiff before a justice, on a charge of perjury, without any reasonable cause, and which was wholly at an end, and he discharged.

The defendant filed his answer, admitting the recovery of a judgment against the plaintiff for $1,000 damages. He also admits the institution of the two several suits against him, as charged, and damages laid as charged, but expressly denies that he is guilty of the supposed grievances, as charged. He expressly denies his insolvency, but charges that his property is of greater value than all his indebtedness. He further answers, that previous to the filing of the bill, he assigned, for a good and valuable consideration, one-half the damages so recovered to one Geo. T. M. Davis.

To this answer the plaintiff excepted, first, because he did not deny that he had charged plaintiff with perjury and larceny, and appeared before a justice of the peace, and prosecuted the plaintiff, on a charge of perjury, etc., and procured his arrest and imprisonment, without cause, etc.; and, secondly, because he had not answered whether the plaintiff would be in danger of losing the benefit of his judgment for damages to be recovered in said actions.

The court disallowed these exceptions, and on motion of the defendant, dissolved the injunction. The plaintiff dismissed the bill, without prejudice, and prosecutes this appeal to correct the following errors, assigned by him:

First. Disallowing the exceptions to the answer;

Second. Dissolving the injunction; and

Third. Dismissing the bill, and entering a decree for costs.

In order to determine the propriety of disallowing the exceptions, it becomes necessary to inquire, what are the material allegations in this bill, for the defendant having submitted to answer, must respond to every material allegation.¹ (This rule is a vexed question, and there are some exceptions to it.)

The sole ground of equity, if there be equity at all on the face of this bill, is the probable danger of losing his damages, on account of the defendant's insolvency, and the injustice of permitting defendant to collect of him $1,000 damages, which would but pay the whole, or part of those to which the plaintiff was entitled. In order to raise this equity, the complainant must show that he has recovered damages; but inasmuch as they have not been adjudged to him, he sets forth the pendency of his actions, in which the defendant is charged with certain wrongs and injuries. Still his clamor may be false, and hence the necessity of reducing to greater certainty these unliquidated damages. For which purpose, his own oath and opinions not being sufficient to entitle him to recover, he charges the existence of such facts, and that he can prove them by such witnesses, by name, as will entitle him to recover them. It is not a bill of discovery of evidence to maintain those actions, for, upon its face, it shows that he already has sufficient. The disclosure of such evidence in the bill is only to show that he is entitled to the damages claimed for the trespasses and wrongs committed by the defendant. The material allegation, then, is the defendant's commission of those injuries. The defendant might admit that the plaintiff could prove all these facts, and still there are many defenses that would manifest his innocence, and defeat the plaintiff's right to recover damages. In the...