Wilday v. Mcconnel
| Decision Date | 31 January 1872 |
| Citation | 63 Ill. 278,1872 WL 8173 |
| Parties | JERIEL WILDAYv.GEORGE M. MCCONNEL, Exr. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Morgan county; the Hon. CHARLES D. HODGES, Judge, presiding.
At the April term of the Morgan county circuit court, 1869, George M. McConnel, executor of Murray McConnel, deceased, recovered three several judgments by default against Jeriel Wilday and others, upon notes given to Murray McConnel in his lifetime. After entry of judgment, the appellant moved the court to set aside the default and permit him to defend, as to one of the judgments, filing his affidavit that he had not been served with process, nor had opportunity to make his defense. The court denied his motion.
Appeal was taken to the Supreme Court, but dismissed for want of prosecution. Appellant then filed his bill praying for a perpetual injunction against the collection of the judgment. In addition to want of service, as set up in his application to open the default, he alleged that a large portion of the amount involved in the judgment had been paid to Murray McConnel in his lifetime, for which he had receipts, but which had been mislaid and forgotten, and only found since the denial of his motion for setting aside the verdict, and that unless aided by the restraining order of the court, he would be compelled to pay the disputed amounts the second time.
It was sworn by the officer who returned the original summons “served,” that when he came with the writ Wilday told him he need not read it to him, that he accepted service; and that he only read to him the names of the parties, the amount of damages claimed, and the time of the term of the court. On this point appellant swore that, McConnel having informed him of the loss of one of the notes and given him a receipt against it, and also receipts for other payments, he did not understand, nor suppose, that he was being sued for the amount thus paid.
The appellee filed his answer, and testimony was taken on both sides; after which the injunction granted in the first instance was dissolved and appellant's bill dismissed. The case comes to this court by appeal from that order.
Mr. I. J. KETCHAM, for the appellant.
Messrs. MORRISON & WHITLOCK, for the appellee.
Appellant filed his bill to enjoin the collection of a judgment at law, and praying for a new trial.
The evidence clearly shows that the judgment is unjust to some extent; that at least $1400 had been paid upon some of the notes sued upon, which amount had not been credited; that probably other sums had been paid, and that the receipts for the payments had been mislaid and were forgotten, until after the rendition of the judgment. A motion to set aside the default was made at the same term of the court, and overruled, and this bill was filed within the year.
There is a conflict in the evidence as to whether the defendant had actual notice of the pendency of the suit at law, and knowledge that the notes now contested were in suit.
If a judgment is obtained by fraud, and without any negligence on the part of the debtor, a court of equity will afford relief, and either open the case and grant a...
To continue reading
Request your trial
-
Freeman v. Wood
... ... Gage, 15 Daly, 38; Foote v. Despain, 67 Ill ... 28; How v. Mortell, 23 Ill. 478; Beams v ... Denham, 2 Scam. 53; Wilday v. McConnell, 63 ... Ill. 278; Babcock v. McCommant, 53 Ill. 215; ... Brake v. Payne, 37 N.E. 140; Mosley v ... Gilborn, 54 P. 121; ... ...
-
Herrington v. Herrington
...of an officer may be contradicted: Owens v. Ranstead, 22 Ill. 161; Brown v. Brown, 59 Ill. 315; Hickey v. Stone, 60 Ill. 458; Wilday v. McConnell, 63 Ill. 278; Sibert v. Thorp, 77 Ill. 43; Jones v. Neeley, 82 Ill. 71; Davis v. Dresback, 81 Ill. 393; Nat. Bank v. Nat. Bank, 90 Ill. 56. Messr......
-
Albright v. Oyster
...Clifton v. Livor, 24 Ga. 91. [17] Grass v. Hess, 37 Ind. 193. [18] Martin v. Parsons, 49 Cal. 94; Weaver v. Poyer, 79 Ill. 417; Wilday v. McConnel, 63 Ill. 278; Exp. Co. v. Craft, 43 Miss. 508; Brooks v. Harrison, 2 Ala. 209; Dunklin v. Wilson, 64 Ala. 162; Crafts v. Dexter, 8 Ala. 767. [19......
-
Gillett v. Booth
... ... Bullock, 73 Ill. 205; Ames v. Snider, 55 Ill. 498; Wilday v. McConnell, 63 Ill. 278; Henrickson v. Van Winkle, 27 Ill. 274; Brown v. Hurd, 56 Ill. 317; McGehee v. Gold, 68 Ill. 215.A motion to dissolve an ... ...