Herzberger v. Barrow

Mr. Justice Ball

delivered the opinion of the court.

Appellants bring here for review the action of the learned chancellor in ordering an injunction to issue. The facts alleged in the bill as ground for this action are not denied. The appeal is based upon the face of the bill. The case stands as if appellants had demurred. It follows that whatever is well pleaded in the bill must be considered as true. Thus viewed, a case of fraud, oppression and of legal misconduct is presented which calls for relief. It appears that the first judgment was obtained against William Barrow without his being served with summons or being notified in any other way that the suit had been commenced; and without the existence of any indebtedness upon which a just judgment could be founded; and after attorney. Roblin, who, it seems, is now beyond the jurisdiction of the courts of this state, had led said Barrow into the presence of at least four outside and distant justices of the peace, only to dismiss his suit when in each instance he found his pretended debtor there ready to defend against such alleged claim. The law is not powerless to relieve a party thus injured. In such a case the courts of law, if they afford "any relief, do not afford adequate relief. Hpon appeal or certiorari the face of the record would be errorless. No averment can be made in the same action that the officer’s return therein is false. It is true that the officer may be sued fora false return; but the result of such a suit, through the vagaries of the jury, may be unfavorable; or. if it reaches judgment, the defendant may escape its consequences by the insolvency of himself and of his sureties. In equity the fact that the return is false may be set up, and if proven, the complainant will be relieved from the consequences of an unjust judgment. Owens v. Ranstead, 22 Ill. 161; Hickey v. Stone, 60 Ill. 458. The ground of jurisdiction in chancery is the inadequacy of the remedy at law.

Because the law does not permit the return of the officer to be contradicted under the writ of certiorari brought upon the first judgment, the quashing of that writ does not estop appellee William Barrow from joining herein as a complainant. That proceeding was wholly ineffective, and ought therefore to be regarded as a nullity. The bill alleges that William Barrow did not know of the existence of this judgment until the statutory time for taking an appeal therefrom had expired. Fitzgerald v. Kimball, 86 Ill. 396. He then had no adequate remedy except upon appeal to the chancellor.

The bill sets out that both appellees are being oppressed by the unjust and illegal use of the machinery of our courts by appellants. The wrongs done appellees are joint, and their interest in having these proceedings reviewed by a proper tribunal is joint. The second judgment, which, according to the bill, the justice denied he had entered, and thus appeal therefrom was prevented, grew out of the fraudulent judgment first entered. If that judgment be found void, there can be no recovery on the forthcoming bond. These two judgments are so intermingled that a court of chancery can and should dispose of them in one proceeding. We see no reason why appellees might not unite as complainants in this bill.

If the bond given upon the issuing of the injunction is informal or defective (a point we do not decide), that fact is not jurisdictional, and will be remedied by the chancellor upon proper application.

The injunction runs against the justices of the peace as well as against the other appellants. This is unnecessary to the relief sought. When a case is made calling for the exercise of equitable jurisdiction, the chancellor should restrain the parties to the suit at law, but not the law court. In this respect the order appealed from is erroneous. Eberhardt v. Penn. Ry. Co., 15 Ill. App. 541.

It is therefore ordered that the 'decree of the Superior Court be reversed as to Justice W. D. Wilcox and Justice John B. McDonnell; and it is further ordered that such decree be affirmed as to the other appellants, Harry Herzberger, William B. Field and Louis Greenberg, and that appellees recover their costs in this court against the appellants in respect to whom the decree is affirmed.

Affirmed in part and reversed in part.