Greene County IL Archives Court.....More, Vs. Bagley 1819-31
************************************************
Copyright.  All rights reserved.
http://www.usgwarch.org/copyright.htm
http://www.usgwarch.org/il/ilfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 4, 2008, 11:33 pm

Source: Reports Of Cases Illinois
Written: 1819-31

June Term 1825, Vandalia.


More and Bates, Appellants, v. Bagley, Borer and Robbins, Appellees.

APPEAL FROM GREENE.

If a party neglects to make his defense at law, a court of chancery will not 
relieve him.

Opinion of the Court by Justice Lockwood. It appears from the bill exhibited 
in this cause, that an action was commenced before a justice of the peace on a 
promissory note, and that on the trial of the cause, the defendants offered to 
prove by their own oaths the fact, and called on plaintiffs below to disprove, 
that the consideration of the note was for the sale of an improvement on 
public, lands. The bill also states that the justice overruled this defense, 
and gave judgment for the plaintiffs. Without intending to decide whether this 
defense ought to have availed the defendants if they had proved it, it is 
sufficient for this court to say, that the complainants have mistaken their 
remedy. The defense set up by the complainants before the justice was purely a 
legal one. Their only remedy, in case the justice decided erroneously, was to 
appeal to the circuit court. The complainants having neglected to avail 
themselves of this remedy, can not now ask the interposition of a court of 
equity. The allegation in the bill, that complainants could only prove the 
facts in what the consideration of the note consisted, either by their own 
oath, or the oath of the plaintiff, can be no reason for not prosecuting an 
appeal from the justice's decision. Had an appeal been taken, the complainants 
could, by filing a bill of discovery, have obtained the necessary proof. In 
the case of Duncan & Lyon, 3 Johnson's Chan. cases, 351, chancellor Kent says, 
that "it is a settled principle that a party will not be aided after a trial 
at law, unless he can impeach the justice of the verdict or report (of 
referees) by facts, or on grounds of which he could not have availed himself, 
or was prevented from doing it by fraud or accident, or the act of the 
opposite party, unmixed with negligence or fault on his part." The decree 
below must therefore be reversed. (a) (1)

Decree reversed.

McRoberts, for defendants in error.

----------------
(a) The court of chancery will not relieve a party on the ground of his having 
proceeded to trial al law without sufficient evidence, when it was in his 
power to have obtained that evidence by a bill of discovery, 4 Johns. Rep., 
510.

(1) It was said by the court in Propst v. Meadows, 13 Ill., 169, that "It is 
within the ordinary jurisdiction of this court to grant relief against 
judgments at law, either by granting new trials, or by perpetual injunction, 
if it shall appear that the judgment complained of was obtained by fraud, or 
resulted from inevitable accident, and that the courts of law can not grant 
adequate relief." See Beaugenon v. Turcotte, post; Hubbard v. Hobson, id.; 
Beames et al. v. Denham et al., 2 Scam., 58; Wierich v. DeZoya, et al., 2 
Scam., 388; Scott v. Wnitlow, 20 Ill., 310.

A party who seeks to set aside a judgment by a proceeding in chancery, so as 
to obtain a new trial, must show himself clear of all laches, and also that 
every effort on his part was made to prevent the judgment against him. 
Ballance v. Loomis, et al., 22 Ill., 82.

The rule that equity will not relieve against the neglect of a party in a suit 
at law, who has not made a proper defense, or to move for a new trial, will 
depend upon the fact that he knowingly had a day in court. Owens v. Ranstead, 
22 Ill., 161.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

File at: http://files.usgwarchives.net/il/greene/court/more238gwl.txt

This file has been created by a form at http://www.genrecords.org/ilfiles/

File size: 4.4 Kb