Wierich v. Zoya

• Citation: 7 Ill. 385,1845 WL 3948,2 Gilman 385
• Court: Illinois Supreme Court
• Decision Date: 31 December 1845
• Parties: AUGUSTUS WIERICHv.JOHN P. DE ZOYA et al.

2 Gilman 385

7 Ill. 385

1845 WL 3948 (Ill.)

AUGUSTUS WIERICH

v.JOHN P. DE ZOYA et al.

Supreme Court of Illinois.

December Term, 1845.

BILL IN CHANCERY for an injunction, etc., in the Jo Daviess circuit court, filed by the appellant against the appellees. At the August special term of said court, 1845, the Hon. Thomas C. Browne presiding, the bill was demurred to, the demurrer sustained and the bill dismissed.

The material facts appear in the opinion of the court.

O. C. PRATT, for the appellant:

Where a defendant has had an adequate remedy at law, and has been prevented from resorting to it in time by the fraud or circumvention of the plaintiff, he ought to be relieved in equity. Poindexter v. Woddy, 6 Munf. 418; Lee v. Baird, 4 Hen. and Munf. 453; 2 Peters' Cond. R. 518; Williams v. Fowler, 2 J. J. Marsh. 405; Saunders v. Jennings, Ib. 513; 2 Story's Eq. Jur. 173, § 887; 1 do. 256, § 252.

E. B. WASHBURNE, upon the same side, filed the following brief:

The bill shows equity on its face. It was a palpable fraud on the part of the appellees to take a final judgment against the garnishee, after directing him to pay the amount of the note to Sherrill, and promising to have the proceedings withdrawn. 1 Story's Eq. Jur. 197, 201; Ib. 420.

The bill shows a perfect defence on the part of Wierich, and that he was prevented from making it by the representations of the appellees.

The case of Beams v. Denham, 2 Scam. 58, is an authority in point.

In regard to injunctions after a judgment at law, it may be stated as a general principle, that any fact which proves it to be against conscience to execute such judgment, and of which the injured party could not avail himself in a court of law, but was prevented by fraud or accident, unmixed with any fault or negligence on his part, will authorize a court of equity to interfere by injunction, to restrain the party from availing himself of such judgment. 2 Story's Eq. Jur. 174; Cooper's Eq. 139; 7 Cranch, 332.

J. B. WELLS, for the appellees.

The appellant was not entitled to relief in consequence of his own laches, in not appearing and answering the sci. fa. Byers was only a nominal party, and the appellant was so told by him. The conversation between them was a mere street talk, and the appellant should not have relied, as he pretends, upon his talk, knowing that Byers was not a party in interest, though formerly a partner of De Zoya.

The latter, when spoken to by appellant on the subject, informed him that he knew nothing of the circumstances, and could make no agreement with him.

All the cases cited by the counsel for the appellant are based upon the fact of no laches. There is a case in point in 1 Johns. Ch. R. 50.

CATON, J.^a1

The bill shows, that the complainant was served with a garnishee process in an attachment suit, in which the present defendants were plaintiffs and one McCormick was defendant, in which a judgment was perfected against present complainant as a debtor of McCormick, to whom in fact he was not indebted, and that he might have successfully defended himself against the said proceedings, had he attended and made defence. The reason assigned in the bill for not attending to the suit is, that after the issuing of the sci. fa., which was sued out on the conditional judgment, and before the return day of the sci. fa., Wierich was directed by Byers, one of the plaintiffs in the attachment, to pay the demand which they were pursuing by their attachment to one Sherrill, to whom he was satisfied it was due instead of McCormick, and that he would dismiss the garnishee proceedings against them and pay the costs. Relying upon this assurance of Byers, the garnishee paid no further attention to the matter, but that in violation of that arrangement, the plaintiffs in the attachment suit fraudulently proceeded and perfected their judgment against the garnishee, and threaten to collect the same; that according to the direction of Byers, the complainants had paid the demand to Sherill. The bill prays a perpetual injunction. A demurrer was sustained to the bill, and the bill dismissed.

The only question to be determined is, whether the bill shows sufficient upon its face to entitle the party to the injunction. We are clearly of the opinion that it does. The demurrer admits the truth of the statements in the bill, and they present a clear case of fraud. The defendants have taken advantage of their own wrong in obtaining the judgment at law. I hardly know where we are to look for a stronger case....