Paine v. Frazier , 5 Scam. 55 ( 1842 )

Treat, Justice,

delivered the opinion of the court: The Fra-ziers filed their bill in chancery in the Yermilion circuit court, against Payne and Alexander, alleging that they had purchased certain tracts of land of Payne, over which the Northern Cross railroad was located, and for the damages occasioned by such location, Payne had obtained a judgment against the State [* 56] of Illinois for $150, which by the terms of sale, was to be paid to them; that Payne, contrary to the terms of sale, was about to obtain payment of the judgment from Alexander, who was a commissioner of the board of public works. The bill prayed for an injunction restraining the payment of the judgment to Payne, and also that Alexander might be required to pay it to the complainants. An injunction was obtained, and service made on Payne on the 8th of June, 1839, and on Alexander on the 1st of July, 1839.

On the first of June, 1840, Alexander filed his answer, admitting the recovery of the judgment as stated in the bill, denyingall knowledge of the sale by Payne to the complainants, and averring that on the 27th of June, 1839, before he had any knowledge of the pendency of the suit, he paid to Payne$50 in full satisfaction of the judgment, and received from him a relinquishment to the State of the right of way over the land, which he filed with his answer. Payne made no answer. The complainants failed to file a replication to the answer of Alexander.

At the September term, 1840, the court, without noticing the answer of Alexander, decreed that the injunction be made perpetual, and that the complainants recover their costs.

At the May term, 1842, the court further decreed that Alexander pay to the complainants the amount of the judgment within thirty days, or in default thereof, that an execution issue against him therefor. To reverse this decree, this writ of error is prosecuted.

The decree was clearly erroneous. The answer of Alexander, if true, furnished a complete defence to the suit. No replication was filed, putting its allegations in issue, and in such case, the answer is to be taken as true, and requires no proof to support it. E. L. 123, §14; Gale’s S.tat. 142.

The decree of the circuit courtis reversed, with costs, and the cause remanded, with instructions to permit the complainants to file their Replication to the answer, and proceed with the cause.

Decree reversed.