Colson v. Leitch

Citations

• 110 Ill. 504

Syllabus

<p>1. Injunction—to restrain the collection of a judgment at law for want of service on the defendant. A court of equity will not enjoin a judgment at law merely on the ground that the process in the suit in which the judgment was rendered was not served on the defendant. To justify the interliosition of a court of equity in such a ease, it must be further shown that if the relief sought be granted, a different result will be obtained from that already adjudged by the void judgment. This is the rule under the common law authorities.</p> <p>2. Same—as to the limit of such an injunction, under the statute. But under the statute, “only so much of any judgment at law shall be enjoined as the complainant shall show himself equitably not bound to pay, ” so that if he be unable to allege and prove that he has a defence against the claim upon which the judgment was founded,.in whole or in part, then the statute would forbid an injunction.</p> <p>3. Estoppel—to claim under a judgment which the plaintiff assumed to vacate. A judgment at law was obtained, as the defendant claimed, without any service of process upon him. The plaintiff in the judgment then sought to make the defendant a part), by scire facias, and in that proceeding the plaintiff filed a paper, signed by himself, purporting to vacate the judgment. The proceeding by scire facias was dismissed. Afterwards the plaintiff sought to collect his judgment by creditor’s bill, when the defendant claimed that by reason of the paper purporting to vacate the judgment the plaintiff was precluded from further claiming under it. But there was no consideration for that paper, it was adjudged of no effect for the purpose intended, and induced no change in the conduct of the defendant,—so there was no estoppel.</p>