Kretschmar v. Ruprecht

Mr. Justice Dunn delivered the opinion of the court: Appellants should have presented the questions argued here, on the trial of the claim for mesne profits, where, if at all, they would have been availing. The judgment, if they had any valid defense to the claim, was the, result of their own negligence. It is immaterial to the decision of this case whether they had a valid defense or not. They had ample opportunity to present it if they had one, but without any reasonable excuse they neglected to do so. Equity will not relieve ag'ainst a judgment at law except in cases of fraud, accident or mistake, and then only where the party applying for relief is free from all negligence. “It is not enough that the judgment is unjust; it must have been obtained without negligence on the part of the appellant to entitle to relief.” (Walker v. Shreve, 87 Ill. 474; Tallman v. Becker, 85 id. 183; Harding v. Hawkins, 141 id. 572; Ward v. Durham, 134 id. 195; Hahn v. Gates, 169 id. 299; Lucas v. Spencer, 27 id. 15.) Even though appellees had had no right to judgment in the ejectment suit and no cause of action against appellants, either jointly or severally, for mesne profits, and had taken judgment for a greater amount than was due, yet appellants could not willingly or negligently permit such judgment to be taken and then be relieved from it in equity. False testimony given at the trial or false assertions as to liability are not grounds for setting aside a judgment; (Galena and Southern Wisconsin Railroad Co. v. Ennor, 116 Ill. 55; ) nor is presenting a claim without disclosing a defense which may exist to it"; (Ward v. Durham, 134 Ill. 195;) nor is insisting upon an unfounded or over-stated claim. (Dickson v. Hitt, 98 Ill. 300.) It is not the policy of the law to permit a party to slumber upon his rights when he has the opportunity and is required to assert them in a court of justice, and then seek them in another forum. Upon the commencement of the ejectment suit Mrs. Bredow’s attorney assured appellants that the proceedings would not affect them, and that their rights would be protected by the action such attorney would take on behalf of Mrs. Bredow. They, however, did not retain him or any other attorney. After that time, and after the attorney’s death, a summons, and later a notice of the execution of the writ of inquiry, were served on them personally and were ignored. Their reliance upon Mrs. Bredow’s attorney to protect their rights does not relieve them of the consequences of their own negligence. Bardonski v. Bardonski, 144 Ill. 284; Hahn v. Gates, 169 id. 299; Kern v. Strausberger, 71 id. 413. The judgment of the Branch Appellate Court will be affiimed. Judgment affirmed.