Allen v. Hickey

53 Ill. App. 437, 1893 Ill. App. LEXIS 325

• Court: Appellate Court of Illinois
• Decided: May 22, 1894
• Status: Published

Opinion

Mr. Presiding Justice Harker

delivered the opinion of the Court.

That a court of equity has power to relieve against a judgment at law which has been obtained without process or by other fraudulent means, is well established by decisions of our Supreme Court. Owens v. Ranstead, 22 Ill. 161; David v. Dresback et al., 81 Ill. 393; C. & St. L. R. R. Co. v. Holbrook, 92 Ill. 297; Colson v. Leitz, 110 Ill. 504.

It must appear, however, that the party seeking relief has himself been guilty of no laches, and that he has been deprived of the opportunity of asserting his defense through some accident, fraud or mistake not of his own procuring. If his claim is that no service of summons was had upon him, and such claim is asserted in the face of a return of a sheriff showing that the summons was served upon him, he assumes the burden of establishing such claim by clear and satisfactory evidence. It is not sufficient evidence to impeach and vacate the judgment that the party alone swear that he was not served with process.

The return has the sanction of an official oath and to allow it to be set aside upon the sworn denial of the defendant merely, would destroy the stability which characterizes judicial proceedings and open wide the door for temptation to perjury.

As we view it, the only serious question for our consideration is, whether appellant was served with summons in the suit which resulted in a judgment in favor of John Hickey against F. 0. Allen for $2,386, of date May 2, 1890.

Was the return made by special deputy George W. Jewel, showing service upon F. S. Allen, true or false ?

There was a conflict in the testimony. The return upon the summons was supported by the testimony of appellee and George W. Jewel. They are corroborated to some extent by two other witnesses, George Sayers and Peter Ettrington. The return is attacked by the testimony of appellant, and he is corroborated to some extent by two other witnesses, H. H. Smith and Andrew G. Watson. These witnesses were examined in open court. The trial judge was afforded much better facilities for determining the credibility of their testimony than we have. We would not feel warranted in disturbing his finding, unless it appeared to us jialpably erroneous.

The court properly refused to hear evidence as to whether appellant was indebted to appellee. Having found that appellant was served with process in the suit in McLean County, he shall be held to have had his day in court.

We see no reason for disturbing the decree. Decree affirmed.