Watson v. Reissig

24 Ill. 281

• Court: Illinois Supreme Court
• Decided: April 15, 1860
• Status: Published

Opinion

Catón, C. J.

The law is too well settled to admit of discussion, that a court of law may exercise an equitable jurisdiction over the execution of its own judgments and process, but it does not follow that it will always exercise such jurisdiction, and indeed it will refrain from doing so, when, from any circumstance, it cannot do as complete justice as could a court of equity, but will leave the parties to seek relief in that court. We shall see whether this record presented such a case as justified the court of law in exercising such an equitable jurisdiction.

The objection which is urged to the consideration of the affidavits which were read upon the first motion, is well taken. .Those affidavits were not properly entitled, and for that reason should not have been considered by the court below, and cannot be considered by this court.

An objection is also taken to the sufficiency of the notice to Freer to appear and resist that motion to set aside the sale and satisfaction of the judgment. If that notice was insufficient, and for that reason, as well as for the defect in entitling the affidavit, the court improperly and erroneously granted the order, the whole merits of the case come up on the motion to vacate that order, and we may address ourselves at once to the inquiry, whether such facts appeared on the hearing of this last motion as were sufficient to sustain and justify the order which had been made, and which was thén sought to be set aside. The facts may be stated in a very few words. The property had been previously sold on the Savage execution, and there only remained in the judgment debtor a right of redemption. This was levied upon and sold by virtue of this execution, and bid in by, or for, the judgment creditor, and upon that bid and for that consideration, satisfaction of the judgment and execution was entered. And whether this sale and satisfaction should be set aside, was the real question to be determined.

In the case of Merry v. Bostwick, 13 Ill. R. 398, it was decided by this court, for reasons which we think entirely satisfactory, that the right of redemption which is by our statute vested in the judgment debtor for twelve months after a sale of real estate under a decree or an execution, is not subject to be levied upon and sold, by virtue of another execution against the judgment debtor. Hence this levy and sale conferred no right or title to the purchaser. It was entirely void, and the satisfaction was entered without any shadow of consideration whatever. In such a case it was not only proper, but it was the duty of the court to set aside, or vacate the entry of satisfaction, and to issue another execution under which the judgment creditor might redeem from any sale where the law would permit it, or otherwise seek a real satisfaction of his judgment.

The order of the court below is affirmed.

Order affirmed.