Nees v. Dumbauld

Appellate Court of Illinois

Nees v. Dumbauld

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

DecidedApril 21, 1908

StatusPublished

This text of 142 Ill. App. 487 (Nees v. Dumbauld) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nees v. Dumbauld, 142 Ill. App. 487, 1908 Ill. App. LEXIS 219 (Ill. Ct. App. 1908).

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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.

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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.

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Bluebook (online)

142 Ill. App. 487, 1908 Ill. App. LEXIS 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nees-v-dumbauld-illappct-1908.

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