Rising v. Brainard

Citations

• 36 Ill. 79

Syllabus

<p>1. Judgments by confession, in vacation—proof required. It has been held, that where a judgment is entered by confession in vacation, more than a year and a day after the power of attorney was executed, an affidavit should be filed showing that the defendant is alive, and that the debt is due and unpaid.</p> <p>2. Same — when the objection m/usl first be taken. But in such cases the party aggrieved should apply to the court in which the judgment was entered for redress, where he may obtain it, on motion, if equitably entitled thereto.</p> <p>3. Same — what is sufficient ground for relief. Before a judgment will be set aside, however, because an affidavit was not filed showing that the defendant was alive and that the debt was due and unpaid, the party making the application is required to show some equitable reason therefor. A mere non-compliance with the rule of the court in this regard, is not a ground for equitable relief.</p> <p>4. Same—when error will lie. Should the court below refuse to grant relief when a proper application is made to it, the party aggrieved may then bring his case to the appellate court to correct the error of the court below. But a judgment entered by confession will not be reversed on the sole ground that no affidavit was filed showing that the defendant was alive and that the debt was due.</p>