Farrell v. McKee

Mr. Justice Breese delivered the opinion of the Court: The bill filed in this cause contains no matter for the interposition of a court of equity. The act of the officer in levying on property exempt by law, can be reached by an action at law, and full damages recovered. It affords no ground for a court of equity to interfere, except perhaps under extraordinary circumstances, which are not shown in this case. An order of the judge of the -Circuit Court in which the proceedings arose, might have been obtained to stay the proceedings until a motion could be heard to set aside the levy. Full and ample remedy existed at law, for all the injury of which complaint is made. Robinson v. Chesseldine, 4 Scam. 332. Such an application, specifying the property, giving an abstract of the title, with its value, and incumbrances, if any, upon it, would have authorized the judge to stay the proceedings against the personal property until the real estate should be exhausted. Pitts v. Magie, 24 Ill. 613. The remedy being complete at law, there was no equity in the bill, and the injunction was improvidently granted and therefore properly dissolved. The bill being for an injunction only, when that was dissolved, nothing remained for the action ■of the court, and, therefore, the court did not err in dismissing the bill. The answer in this case denied all the equity in the bill, and must be taken as true as there was no replication filed, and hearing a motion to dissolve an injunction and dismiss the bill, is, under such circumstances, equivalent to hearing the cause upon the pleadings. The dissolution of the injunction was a matter of course upon filing the answer, unless the bill is sustained by affidavits. Parkinson v. Trousdale, 3 Scam. 367. But the plaintiff complains that he was not permitted to sustain his bill by affidavits, his motion for a continuance for such purpose having been overruled. The affidavit does not show any such ground for a continuance, as the statute requires. By section 13 of the act respecting neexeat and injunctions, it is provided, if after a dissolution is moved for, the plaintiff in the bill will satisfy the court by his own affidavit, or the affidavit of any disinterested person, that the answer, or any material part thereof, (to be specified in the affidavit) is untrue, and that he has witnesses whose testimony he believes he can procure by the next term of the court, who will disprove the said answer, or such material part as shall be specified in the affidavit, and that he has had no opportunity to procure such testimony since the coming in of the answer, it shall be lawM for the court to grant a continuance of said motion until the next term. Scates’ Comp. 148. From this it is manifest the continuance is a matter in a great degree discretionary with the court, as the court must be satisfied the complainant can prove the answer to be untrue. Satisfying the court, is a preliminary and indispensable requisite to a continuance. This being so, it is for the court, to whom application is made, to determine for itself on this point, and its judgment thereon cannot, usually, be inquired into by any other court. The matters set up in the affidavit, were matters to be proved, for the most part, by record, the evidence of which existed in the court where the suit was pending, and which could not be proved by parol. They are, besides, very loosely stated, and in a manner not calculated to satisfy a court. The court not being “ satisfied ” that complainant could disprove the answer, or any material part in it, very properly refused a continuance. We perceive no error in any of the rulings of the Circuit Court, and therefore affirm the decree. Decree affirmed.