Heisler v. Dickinson

17 Ill. App. 193, 1885 Ill. App. LEXIS 304

• Court: Appellate Court of Illinois
• Decided: November 25, 1885
• Status: Published

Opinion

McAllister, J.

This was a creditor’s hill by appellants against Wagner and Goodwillie, as judgment debtors, and against Dickinson, who it was alléged was indebted to the judgment debtors and had property and effects in his hands belonging to them. The bill was in form one for discovery and relief, but waived answer under oatli. Dickinson filed his answer, not upon oath, by which he traversed all the allegations of the bill in reference to him, to which appellants fi’ed a replication. On motion of the defendants, the court dismissed the hill for want of equity, without hearing any evidence. Section 25, of Chap. 22, entitled Chancery, reads: “ When the complainant shall require a discovery respecting the matter charged in the hill, 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.”

If the bill in this case is not to be regarded as a bill of discovery it was like any other case, and the court could not properly dismiss it on motion of defendants, without evidence, unless it failed to set out a case which entitled the complainants to any relief. The bill here was not 'of that character. It was a proper bill of the kind known as a creditor’s bill. If, however, it was a bill for discovery, or in the nature of such bill, then the right of complainants to adduce testimony to contradict the answer and maintain the allegations of the bill, was secured by said § 25 of the statute. In any pioint of view, therefore, it was error to dismiss it upon the coming in of the answer, since a replication was filed thereto.

The decree of the court below will be reversed and the cause remanded.

Decree reversed.