Bowman v. Wilson , 64 Ill. App. 73 ( 1895 )

Mr. Justice Pleasants

delivered the opinion of the Coubt.

In certain proceedings in Greene county, at the suit of appellants against Andrew C. Bowman et al., for the partition of real estate, a decree was entered for the sale of the premises by the master in chancery, which was accordingly made for $10,000. Appellee was solicitor for appellants, the complainants in those proceedings. Before the proceeds of the sale were ordered to be distributed, he made a motion for leave to file an intervening petition therein, and upon obtaining it, filed the one which is the foundation of this case.

It averred that on August 31,1894, the petitioner recovered a judgment against appellants in the Superior Court of Cook County for §848 and costs, on which execution was issued the next day and returned no property found; that appellants have no property in this State out of which the execution could be made, except their distributive shares in the proceeds of the sale under said decree in the hands of the master, who is not liable to be garnished at law; that his said judgment was upon a note of appellants, given upon an accounting between the parties on August 21,1894, and was for his fees as solicitor of appellants in said partition case and of Andrew C. Bowman in the same, which they assumed tp pay, and also for money lent and advanced by him for them at their request; that he has no sufficient remedy at law for the collection of said judgment, but has an equitable right to a lien upon appellants’ distributive shares in the proceeds of said sale; and that the master in chancery has in his hands, of such proceeds, §1,000, belonging to them. It prays for a rule on them and the master to answer under oath, and for a decree, on hearing, for a satisfaction of said judgment out of said fund, etc.

The answer of appellants did not deny the rendition of the judgment, or the issuance and return of execution thereon as alleged, but did deny personal knowledge thereof. It averred that if any such judgment was obtained it was without process against or other notice to them of the institution of any proceedings therefor; that they were able and willing to pay all just claims against them'; denied that there was ever any accounting between the parties; that the respondents ever assumed to pay petitioner for any services as solicitor of said Andrew C. Bowman, or that they were indebted to him for money advanced for them or on any other account; averred that the court fixed the amount of his fees as solicitor for them in said cause, which was fully paid, and that he obtained the note on which the judgment, if any, was rendered, by representations so false and fraudulent and acts so oppressive, that if true they could not be characterized with too much severity. But their allegation in this case was excepted to as impertinent and scandalous, and the exceptions were sustained. Thirty days were given to appellants in which to file sufficient answers. The rule was not complied with, but after the lapse of the time so given, and without any further answer in the same term, appellants by some means, in the absence of counsel for appellee, obtained an order of continuance; which, on motion of said counsel, as soon as it became known to them, and during the same term, was set aside, the default of appellants for non-compliance with the rule taken, and a decree made according to the prayer of the petition taken as confessed; from which this appeal was prayed and allowed.

Had the ignorance of appellants and the acts of fraud and oppression alleged in the answer been set forth to the court in which the judgment was rendered, upon a motion to open it and let them in to plead, we should have held that the matters excepted to were neither impertinent nor scandalous, constituting, as they did, the ground of the motion and being within the cognizance of that court.

But if they were not legally within the cognizance of the Circuit Court of Greene County, sitting in chancery, upon this petition, they were both impertinent and scandalous, and the exception thereto for those reasons was properly sustained.

We infer that the judgment of the Superior Court of Cook County was upon a note of appellants with a power of attorney to confess it, and as nothing appears by- the answer to show a want of jurisdiction in that court of the subject-matter and the persons of the defendants, we think the Circuit Court of Greene County had no power to question the validity of its judgment. Sawyer v. Moyer, 109 Ill. 461.

It is truly said, generally, that fraud vitiates everything, judgments included, into which it effectively enters. But this is said only of fraud properly alleged and duly shown in a proper proceeding. A court of law may set aside its own judgment obtained by fraud upon itself, but not for fraud practiced only upon the adverse party, where he has had his day in court, or opportunity to have it, or has waived it, and his adversary has obtained judgment upon competent and sufficient evidence, however false and fraudulent. The court of law rendering it can not in such case set it aside or review it. Public interest requires that there should be an end of litigation. Errors of law or fact may be corrected by a court of review; and a court of equity, upon a proper showing by a defeated party, of newly discovered evidence which should produce a different result, unknown to him before or at the time of trial, without his fault, may award a' new trial in the court of law; but we know of no authority or principle upon which the judgment of a court having jurisdiction of the subject-matter and parties can be otherwise attacked collaterally or be disregarded by any other, or even by the court which rendered it, except as to judgments by confession upon warrant of attorney, over which it is held to have an equitable control by virtue of which it may, upon a proper showing, let the defendant in to plead, leaving the judgment to stand as security for the outcome. We understand these propositions to be so well established and familiar as to require no extended citation of authority. They are largely referred to in tho brief for appellee, and will, doubtless, be given by the reporter.

Here the intervening petition was in the nature of a creditor’s bill, founded on the judgment of another court having unquestioned jurisdiction and the exhaustion of legal means of obtaining satisfaction, without effect, and was addressed to the only court having control of the equitable assets sought to be so applied. The defense attempted to be set up is that if the court which rendered that judgment had known the facts, it should not have rendered it. But it was rendered by express authority of appellants, upon their own note, which was apparently a valid and sufficient consideration for it. They had notice of it in ample time to apply to that court for relief by motion, but did not avail themselves of the opportunity. For authority of the court below in effect to grant it in this proceeding counsel cite the cases of Higgins v. Curtiss, 82 Ill. 28, and Anderson v. Hawhe, 115 Ill. 33. The judgment in the first was an allowance by the County Court of a claim against the estate, and the court held that it was not conclusive against the sole devisee, and might be so attacked by her as fraudulent and inequitable; and in the other, the judgment was absolutely void for want of jurisdiction of the person of the defendant. These cases therefore do not controvert the rule declared in Sawyer v. Moyer, supra.

Perceiving no material error in the record the decree of the court below will be affirmed.