Harbert v. Mershon

64 Ill. App. 297, 1896 Ill. App. LEXIS 903

• Court: Appellate Court of Illinois
• Decided: May 14, 1896
• Status: Published

Opinion

Mr. Presiding Justice Gary

delivered the opinion of the Court.

The appellant filed a judgment creditor’s bill, calling upon the appellees to answer under oath, which they did, denying everything upon which the appellant could have any relief. Thereupon the court dismissed the bill for want of jurisdiction to proceed further.

This action was in accord with the opinion of this court in Phila. Ins. Co. v. Cent. Nat. Bk., 1 Ill. App. 344, and N. S. Ins. Co. v. Cent. Nat. Bk., 7 Ill. App. 426, and with the opinion of the Appellate Court of the Third District in Fifield v. Gorton, 15 Ill. App. 458, in neither of which cases was Sec. 25, Ch. 22, “ Chancery,” alluded to. But the action of the court was in opposition to the opinion of this court in Heisler v. Dickinson, 17 Ill. App. 193, and Schroeter v. Brown, 59 111. App. 24, in neither of which cases was either of the three earlier cases alluded to. In Addyston Pipe and Steel Company v. City of Chicago, 58 Ill. App. 273, we decided that the city could not be made defendant to a bill of this character, and March 28, 1896, the Supreme Court reversed our judgment (Legal Hews, April 4, 1896, p. 256), distinguishing the case from Merwin v. City of Chicago, 45 111. 133, on the ground that if the answer of the city denied indebtedness that would be the end of the litigation, and cited the three cases herein first cited, as well as Bouton v. Smith, 113 Ill. 481, as authority, and still with no allusion, either in the opinion reversing our judgment or in Bouton v. Smith, to Sec. 25.

We may believe that the reason for distinguishing from Merwin v. City of Chicago is not well founded, but it is our business to obey, not to criticise, the decision.

The Circuit Court acted upon the doctrine approved by the Supreme Court, and the decree appealed from is affirmed.