Babcock v. McCamant

Citations

• 53 Ill. 214

Syllabus

<p>1. Injunctio'S—judgment improperly, changed. Where a judgment was obtained and execution issued, and was levied on property sufficient to satisfy the debt, but was returned by order of the plaintiff, and subsequently the record was fraudulently changed and the amount of the judgment increased, without, consent of the judgment debtor, and a second execution issued thereon: Held, a court of equity had jurisdiction to interpose by injunction, to prevent its collection, and relieve against the fraud.</p> <p>2. But had the only relief sought been to quash the execution and set aside the levy, the remedy would have been by motion, when an order could have been obtained by applying to the judge at chambers, staying the proceedings until the hearing of the motion. But the relief sought, going to the judgment itself, and to relieve against a fraud, the remedy could be pursued in chancery.</p> <p>3. Jurisdiction in chancery—remedy at law, by statute. Even though a court of law may have the power, under the statute, to correct a judgment which has been fraudulently changed by increasing the amount foi; which it was rendered, it not being clear, however, that such power exists, still that would not oust a court of equity of its jurisdiction. Fraud is a matter of chancery jurisdiction, and that court would not lose it merely by the statute conferring a similar jurisdiction upon courts of law.</p> <p>4. Execution—prior levy pending. A levy upon property is only prima facie evidence of a satisfaction of the judgment, yet, while a prior levy remains undisposed of, it is irregular to issue an ordinary fl.fa. The process should be a venditioni exponas, with a Ji. fa. clause if desired.</p>