Wheatley v. Mracek

160 Ill. App. 646, 1911 Ill. App. LEXIS 946

• Court: Appellate Court of Illinois
• Decided: April 13, 1911
• Docket: Gen. No. 16,785
• Status: Published

Opinion

Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by Mracek and Gettert from an order denying their motion to dissolve an injunction for the following reasons:

“1. There is no equity on the face of the bill.

(a) The bill is multifarious in seeking relief against Mracek for specific performance of a contract and also in seeking relief against Gettert in seeking to set aside a judgment for possession recovered by said Gettert against complainant.

(b) The bill seeks specific performance of a contract which is not signed by Mracek and hence is within the Statute of Frauds, there being no allegations of part performance.

“2. The affidavits filed by the defendants show that there is no equity in complainant’s bill upon the merits.”

The objection that the bill is multifarious was not raised either by demurrer or answer, and will be considered waived. Gilmore v. Sapp, 100 Ill. 297.

The defense that the contract set out in the bill is within the statute of frauds was not interposed by demurrer, plea or answer, and the objection comes too late when raised for the first time in this court. Boston v. Nichols, 47 Ill. 353; Browne Stat. of Frauds, sec. 568.

The bill is verified. Neither the answer nor the amended answer is verified. There is no certificate of evidence and the affidavits filed and copied into the transcript are therefore not a part of the record. Lange v. Heyer, 195 Ill. 420.

We think that the motion to dissolve the injunction was properly denied, and the order appealed from will be affirmed.

Affirmed.