Buntain v. Blackburn

27 Ill. 406

• Court: Illinois Supreme Court
• Decided: January 15, 1862
• Status: Published

Opinion

Caton, C. J.

This case depends entirely on the sufficiency of the bill. If that states such a case as should induce a court of equity to grant a new trial, then undoubtedly, the court erred in dissolving the injunction and dismissing the bill. The circumstances stated in the bill, we think, show a sufficient excuse for not having presented the evidence in a bill of exceptions, so that he could assign for error, the finding of the court upon the evidence. But the misfortune is, that he does not show what the evidence was before the court, on the trial at law. Eor aught that appears, the evidence was conclusive, showing the plaintiff’s right to the judgment which he recovered, without the least shadow of a defense by the' defendant. The complainant does not claim in his bill, that the court committed the least imaginable error upon that trial, or that the judgment of the court was wrong. But. he does complain that he had a good defense to that action, which he sets out in the bill, but he does not say that he presented that defense on the trial at law, nor does he give the least excuse for not having done so. The presumption is that he did not present his defense on that trial, through his own neglect. I this was not so, he should have shown it in his bill. . We cannot presume it without averments. It makes no difference whether the decree was made at the April or at the January term.

The decree was right, and must be affirmed.

Decree affirmed.