Arnold v. Hems , 89 Ill. App. 313 ( 1900 )

Mr. Presiding Justice Sears

delivered the opinion of the court.

We are of opinion that the Circuit Court should have allowed the motion of plaintiff in error, and required that the dividend received from the assignee be credited pro rata upon the judgment.

In Sandburg v. Papineau, 81 Ill. 448, it is held to be proper practice to compel credits upon judgments or executions, where it appears that there has been partial satisfaction. The court said :

“ There is no principle of law better recognized than that which gives to courts of record power over the process of their courts. It is essential to the administration of justice, and it.by no means depends upon statutory enactment, but the power is coeval with the common law courts; and such courts will recall their process and quash the same, when it is shown that it would be illegal or inequitable to permit its further use, and to allow it to be enforced. If a judgment were satisfied, and, through mistake or design, an execution were to issue upon it, does any one suppose the court from which it issued is powerless to recall and quash it ? Or if it was only partially satisfied, and an execution were to issue for the full amount of the judgment, would any one have the hardihood .to say that the court could not order the credit to be indorsed on the execution ? So the court has power, in all cases, to compel credits on judgments or executions, where it would be illegal or inequitable to proceed to collect the amount claimed. A court of jnstice will never permit a plaintiff, simply because he has acquired an unjust advantage by obtaining an execution, to retain and enforce it.”

That the relief may be thus afforded upon motion in a court of law, without resort to chancery, is established by this decision.

There remains then, only the question as to whether the payment of this dividend should be treated as a partial satisfaction of the judgment. We are of opinion that it should. Bardwell v. Lydall, 7 Bing. 489; Cohen v. L’Engel, 11 So. R. 44.

In the language of Sandburg v. Papineau, supra, it would be “ inequitable to proceed to collect the amount ” represented by this judgment, when it had been in part satisfied. The order of the Circuit Court is therefore reversed and the cause is remanded, with directions to credit upon the judgment of that court the pro rata amount of the dividend, viz., 8103.37.

Reversed and remanded with directions.