Bruschke v. Der Nord Chicago Schuetzen Verein

Citations

• 145 Ill. 433
• 34 N.E. 417

Syllabus

<p>1. Bill of Review—sufficiency of the till. A bill of review of a decree, for error upon the face of the record, and for fraud, set out in full the original bill, the summons issued thereon, the return of service indorsed upon the summons, the entry of appearance for the defendants, the orders of default and reference, the master’s report and depositions thereto attached, and the final decree based upon said report: Held, that the bill was a sufficient compliance with the rules of pleading in respect to such bills.</p> <p>2. In a bill of this nature it is necessary to state the former bill and the proceedings therein, the decree, and the point in which the party exhibiting the bill of review conceives himself aggrieved.</p> <p>3. Same—stating the evidence in the former case. It is well settled that it is not necessary to state as apart of the proceedings in the original cause the evidence on which the court found the facts on which it proceeded to enter the decree. As a general rule, the question in bills of review is not whether the facts found in the decree under review are in accordance with the evidence, but whether the court rendering such decree has correctly applied the law to the facts as found by it.</p> <p>4. Same —party filing must allege performance of the decree. The general rule is, that the decree must first be obeyed and performed before a bill of review can be brought. But the performance of the decree is not necessary to the jurisdiction of the court; it is merely a personal right which the defendant may insist upon, if he urges it upon the attention of the court at the proper time. If he desires to raise the objection of non-performance, he should move to strike the bill from the files, or to dismiss the suit upon his first appearance. He can not go on and treat the bill as if regularly filed by demurring to it or answering it; for by so doing he admits that it is properly in court. Such objection is not properly raised by demurrer.</p> <p>5. Sa