Smith v. Brittenham

Citations

• 88 Ill. 291

Syllabus

<p>1. Appeal—-from refusal to vacate decree, does not involve prior proceedings. Where a final decree is rendered in a chancery suit upon the default of the defendant, and he applies at the next term thereafter, and asks to have the decree vacated and be allowed to defend, which is denied, and he appeals to this court, the appeal, it seems, will bring up nothing more than the decision overruling his application to vacate the decree and be allowed to defend.</p> <p>2. Chancery—answering term after decree. It is doubtful whether sec. 17 of the chancery code, which provides for allowing a defendant to file his answer at the next term after decree, upon showing cause and paying costs, has reference to a decree ordering a bill to be taken for confessed, or to final decrees.</p> <p>3. Same—setting aside decree, a matter of discretion. The vacating, or opening of decrees, and allowing a defense to the merits, is a matter within the sound legal discretion with which circuit courts are clothed, that will not be reviewed in an appellate court, except on such abuse as may work palpable injustice. It is not a matter of right.</p> <p>4. Where a defendant in chancery has been duly served with process, and has notice of every step in the cause, and has every opportunity afforded him of making a defense, and he deliberately elects not to appear and defend, and, after decree pro confesso, is notified of the taking of proof before the master, and refuses to attend, there is no abuse of discretion in refusing to allow him to answer and defend after final decree is entered against him.</p>