Harbert v. Mershon

Illinois Supreme Court

Harbert v. Mershon

48 N.E. 450, 169 Ill. 52

CourtIllinois Supreme Court

DecidedNovember 8, 1897

StatusPublished

Cited by1 cases

This text of 48 N.E. 450 (Harbert v. Mershon) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Harbert v. Mershon, 48 N.E. 450, 169 Ill. 52 (Ill. 1897).

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Opinion

Mr. Chief Justice Phillips

delivered the opinion of the court:

This bill was in form a creditor’s bill for discovery and relief, and by their answers the defendants traversed all the allegations except as to the judgment, the issue and the return of execution. Replication was filed. The court, on motion of defendants, dismissed the bill without hearing any evidence.

Under the early chancery practice a bill for discovery, strictly so-called because exhausted as soon as discovery was made, was almost invariably brought in aid of an action at law and prayed for no relief. On the coming in of the answer the function of the bill ended, and nothing further remained to be done on the equity side of the court. (Story’s Eq. PL sec. 311.) Early in the legislation of this State section 25 of chapter 22 of the Revised Statutes was adopted, which provides: “When the complainant shall require a discovery respecting the matters charged in the bill, the disclosure shall not be deemed conclusive, but if a replication be filed may be disproved or contradicted like any other testimony, according to the practice of courts of equity.” Under this section the right of the complainant to adduce testimony to contradict the answer and maintain the allegations of the bill was provided for and secured. The bill for discovery and relief is like any other bill for relief, which, if good on its face, cannot properly be dismissed, on motion of defendant, without evidence. The bill here was good on its face as a creditor’s bill. On no theory could the court properly dismiss the bill on defendants’ motion without evidence, except for want of prosecution. It was error to dismiss the bill.

Without entering into a discussion of the cases that were referred to in the opinion of the Appellate Court, it is sufficient to say it does not appear that the foregoing provision of the statute was discussed or referred to. The statute is clear and explicit.

The decree of the circuit court of Cook county and the judgment of the Appellate Court for the First District are each reversed and the cause remanded.

Reversed and remanded.

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Mr. Chief Justice Phillips

delivered the opinion of the court:

This bill was in form a creditor’s bill for discovery and relief, and by their answers the defendants traversed all the allegations except as to the judgment, the issue and the return of execution. Replication was filed. The court, on motion of defendants, dismissed the bill without hearing any evidence.

Under the early chancery practice a bill for discovery, strictly so-called because exhausted as soon as discovery was made, was almost invariably brought in aid of an action at law and prayed for no relief. On the coming in of the answer the function of the bill ended, and nothing further remained to be done on the equity side of the court. (Story’s Eq. PL sec. 311.) Early in the legislation of this State section 25 of chapter 22 of the Revised Statutes was adopted, which provides: “When the complainant shall require a discovery respecting the matters charged in the bill, the disclosure shall not be deemed conclusive, but if a replication be filed may be disproved or contradicted like any other testimony, according to the practice of courts of equity.” Under this section the right of the complainant to adduce testimony to contradict the answer and maintain the allegations of the bill was provided for and secured. The bill for discovery and relief is like any other bill for relief, which, if good on its face, cannot properly be dismissed, on motion of defendant, without evidence. The bill here was good on its face as a creditor’s bill. On no theory could the court properly dismiss the bill on defendants’ motion without evidence, except for want of prosecution. It was error to dismiss the bill.

Without entering into a discussion of the cases that were referred to in the opinion of the Appellate Court, it is sufficient to say it does not appear that the foregoing provision of the statute was discussed or referred to. The statute is clear and explicit.

The decree of the circuit court of Cook county and the judgment of the Appellate Court for the First District are each reversed and the cause remanded.

Reversed and remanded.

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Bluebook (online)

48 N.E. 450, 169 Ill. 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harbert-v-mershon-ill-1897.

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