Wilday v. McConnel

Citations

• 63 Ill. 278

Syllabus

<p>1. Fraudulent judgment. If a judgment is obtained by fraud, and without any negligence on the part of the debtor, a court of equity will afford relief, and either open the case and grant a trial, or award a perpetual injunction.</p> <p>2. Defective service of summons—when not sufficient notice. When there are several suits between the same parties, it is not sufficient for the sheriff to state to a defendant the name of the plaintiff, the sum demanded and the return term, without reading the writ, after the defendant has positively sworn, in support of his motion to set aside a default, that he was not duly served and had no knowledge of the matters on which the suit was actually brought.</p> <p>3. A court of equity will relieve against a verdict which is contrary to good conscience—such as enforcing a second payment of a debt already paid, although the defendant might have defended himself at law, but failed to do so through want of notice, or inadvertence.</p> <p>4. The finding of a lost or mislaid receipt subsequent to a verdict will justify setting aside the verdict and granting a new trial, and if that be denied, then the iuterposition of a court of equity would be proper, even though the lost or mislaid evidence of payment be in the custody of the party claiming the benefit of them, he being unapprised of his possession of'them until after judgment.</p> <p>5. Practice. When the amount of the wrongful verdict is ascertained and specific, a court of equity may grant a perpetual injunction to restrain its collection; but when there has been no trial at law, and the evidence is conflicting, it is safer to open the case and-send it back to a court of law to be tried.</p>