Allison v. Drake

Citations

• 145 Ill. 500
• 32 N.E. 537

Syllabus

<p>1. Bill of Review—limitation—when barred. A bill of review for matters apparent upon the face of the record, or to impeach a decree for fraud, can. be brought only within the time allowed for the bringing of a writ of error—five years—the complainant being under no disability and not ignorant of his rights. And the rule is the same in the case of a cross-bill, in the nature of a bill of review, to impeach a decree.</p> <p>2- Same—delay in filing—excused by infancy. Where a party seeking to impeach a decree for the fraud of her solicitor is shown to have had knowledge of the fraud almost seven years before filing her bill, and no good reason is shown for the delay, the same will be filed too late, and the delay will be fatal. But the infancy of a party filing such a bill will excuse the delay.</p> <p>3. Same—defects therein—how waived. If the defendant in a bill of review, which fails to set out in full the pleadings and decree in the matter sought to be reviewed, answers the same and goes to a hearing on the pleadings and proof, treating the bill as sufficient, this will amount to a waiver of the defect in the bill, and objection to the sufficiency of the bill can not be urged in this court.</p> <p>4. Fraud—of solicitor—who may complain by bill of review. Where, one tenant in common of land makes a contract with a solicitor to procure a partition of the same for a fixed price, and the solicitor takes a decree for a much larger sum as his fee, this will be a fraud on the rights of such client; but one of the defendants, who is in no sense a privy to such contract, can not take advantage of the fraud thus practiced, by bill of review to impeach the decree.</p> <p>5. Where a solicitor in a partition proceeding becomes the purhaser of land on an execution issued for solicitor’s fee and costs, he will be chargeable with notice of fraud in the decree; but a purchaser from him without notice, either actual or constructive, of the fraud, will be protected against a bill