Nees v. Dumbauld

142 Ill. App. 487, 1908 Ill. App. LEXIS 219

Opinion

Per Curiam.

Upon a rehearing allowed in this case wa are of the opinion that, upon the showing made in the affidavits, the order of the Circuit Court refusing to allow appellants to plead should be reversed and the appellants allowed to plead to the merits. Under the decisions in our state the doctrine has become firmly established that on motions to set aside judgments by confession the court exercises an equitable jurisdiction. In Rising v. Brainard, 36 Ill. 79, the court say: “The question properly before the court was not whether the judgment should be vacated for error of law, but whether in the exercise of its equitable jurisdiction, there was any equitable reason for opening the judgment.”

This statement of law was affirmed in Knox et al. v. Winsted Savings Bank, 57 Ill. 331, and in Mumford v. Tolman, 157 Ill. 258.

The order of the trial court is reversed and the cause remanded with directions to allow the judgment already entered to stand as security for appellee’s claim, if any is recovered; that action under the execution be stayed until the cause has been tried, and that appellants be allowed to plead to the merits.

Reversed and remanded with directions.