Pease v. Guenther , 61 Ill. App. 345 ( 1895 )

Mr. Justice Waterman

delivered the opinion of the Court.

The power of a court of equity to remove a judgment out of the way of an execution issued upon a subsequent judgment, is undoubted.

The difficulty with the bill filed by appellee is that as against the plaintiffs in the judgments attached, no sufficient reason for enjoining proceedings upon the executions issued thereon is shown.

There is no allegation that “ the notes of the Charles H. Fuller’s Advertising Agency,” alleged to have been “ given for the purpose of defrauding complainant” were those upon which the judgment of said “ Agency ” was entered, or that said “ Agency ” was a party to such fraudulent purpose; while the allegation that no consideration was given by said agency for said notes, if true, does not establish that the notes were not valid and just claims against whomsoever may have executed them; and by whom such notes were made, is not alleged.

The allegation that the complainant has been informed by Hull, the president of the King Manufacturing Company, that said company is not indebted to any one, is entirely insufficient.

The complainant would not, as against appellants, be permitted, upon a final hearing, to testify what Hull had told him, and his ex parte affidavit can have no more weight than would his testimony in the cause.

The statements of Hull may afford good ground for proceeding against him or the company of which he is president, but by themselves are worthless for the purpose of obtaining an injunction to restrain the Charle» H. Fuller’s Advertising Agency or the Whitney Glass Works from the prosecution of the plain legal rights.

The order appointing a receiver and enjoining James . Pease, sheriff, Charles H. Fuller’s Advertising Agency and the Whitney Glass Works, is reversed.