Gross v. Parker ( 1907 )

Mr. Justice Adams

delivered the opinion of the court.

So far as appears from the statements in appellants’ bill, the record in the cause in which J. H. Parker and others were complainants and appellants and others were defendants, is, on its face, free from error, and the decree is valid. It does not appear from the bill in this case that appellants or either of them had any defense to the foreclosure suit. For anything appearing in their bill, the decree in the foreclosure suit would have been the same as it is had appellants appeared in the suit and answered.

It is averred in the bill that appellant Samuel E. Gross was, at the time of the execution of the trust deed, the owner of an undivided three-fourths of the premises; but it is not averred that the legal title was not in Homer E. Gross, who executed the trust deed, or that such execution was unauthorized by Samuel E. Gross, or was without his knowledge or consent. It is not claimed that there was any fraud in the execution of the trust deed, or that the decree was for too large an amount, or was different from what it would have been had appellants defended. Neither is it averred that appellants have lost any right or suffered any loss by the decree or the proceedings subsequent thereto. The sole ground on which appellants rely to have the decree set aside and vacated is, that they were not, in fact, served with process, as provided by law. We must presume, in the absence of a showing to the contrary, that if appellants were now to be let in to defend the foreclosure suit, the result would be the same as it was. The bill, in praying that the decree be set aside, is, as we think, analogous to a motion to set aside an order defaulting a defendant, and taking the bill pro confesso, and to a motion to vacate a judgment by confession, and the bill must show a meritorious defense to the foreclosure suit.

In Whittaker v. Whittaker, 151 Ill. 266, where the defendant, on petition under section 19 of chapter 22 of the Revised Statutes, was allowed to defend, the court say, ib. 271, that the burden was on the defendant to show that the decree against him should not have been made. In motions to set aside defaults at law, the defendant is always required to show by affidavit, facts constituting a meritorious defense. Judgments by confession, in pursuance of- a warrant of attorney, where the debtor is not required to be served with process, are very summary proceedings, yet such a judgment will not be set aside unless on a showing, by affidavit, of a meritorious defense.

In Packer v. Roberts, 140 Ill. 9, the appellant made a motion to vacate a judgment against him by confession, in respect to which the court say: “Such a motion appeals to the equitable jurisdiction which courts of law exercise over judgments by confession. (Hier v. Kaufman, 134 Ill. 215.) Where such equitable jurisdiction is invoked, a judgment by confession will not be set aside for such objections as are here urged without showing equitable reasons. Rising v. Brainard, 36 Ill. 79; Knox v. Winsted Bank, 57 id. 330; Hansen v. Schlesinger, 125 id. 230. No such equitable reasons are shown in the present ease. It is not claimed that the note was not given for a good and valuable consideration, or that the debt for which judgment was entered was not a just debt and honestly due, or that there was any defense to the note upon its merits.” Other cases to the same effect might be cited. In Colson v. Leitch, 110 Ill. 504, Colson, who had recovered a judgment against Leitch, on which an execution had been issued and returned “no property found,” filed a creditor’s bill against Leitch to enforce the judgment, and Leitch filed a cross-bill praying that the judgment be enjoined on the sole ground that he was not actually served in the snit in which the judgment was rendered, although the return of the summons showed service on him. The trial court dismissed Colson’s bill and granted the relief prayed by Leitch’s cross-bill, and the Appellate Court affirmed the decree. But the Supreme Court reversed the decree, saying, among other things: “In our opinion the weight of common law authority is, that a court of equity will not enjoin a judgment at law where there has been no service,- unless it is alleged and proved that, if the relief be granted, a different result will be obtained than that already attained by the void judgment.” Ib. 508. See, also, Hier v. Kaufman, 134 Ill. 215, 225, and Cassem v. Brown, 74 Ill. App. 347.

No attempt is made by the bill in the present case to show that the foreclosure decree would be different on another hearing. The decree will be affirmed.

Affirmed.