Hopper v. Davies

Mr. Justice Sears delivered the opinion of the Court. This is an appeal from an interlocutory order, appointing a receiver of certain real estate. The bill of complaint of appellee alleges a judgment recovered against her in favor of J. H. Waller, as administrator, etc., upon certain promissory notes, which notes, the bill alleges, had been paid; execution upon judgment, sale of the real estate in question by sheriff upon execution, sheriff’s deed to appellant Patterson, conveyance by Patterson to appellant Hopper, and appropriation of rents by Patterson. Ho attack is made upon the regularity of the proceedings in which the judgment was rendered. It is, however, alleged that the complainant, appellee, was enabled to properly testify at the hearing of the cause, which resulted in the judgment, because of the serious illness of her husband, and was prevented from appealing from the judgment partly by the death of her husband, and partly by the assurance of her attorney—against whom there is no charge of fraud—that he would obtain a new trial. The prayer of the bill is, among other things, for the setting aside of the judgment, the sheriff’s deed and the deed from Patterson to Hopper. It is urged that the receiver was appointed without notice to appellant Hopper. We think that upon the facts—the failure to find the address of Hopper from the directory or otherwise, the refusal of Patterson and his counsel to disclose the whereabouts of Hopper, and their subsequent proffer to bring him before the court within twenty-four hours if the court would delay the appointment of a receiver, the court was fully warranted in excusing any further effort to notify Hopper. It is also urged that the verification of the bill is insufficient, and Packer v. Roberts, 44 Ill. App. 232, and other cases are cited in support thereof. These cases are not in point. In each there was a total failure of proper verification. In the case under consideration the entire bill, save one allegation, was directly and positively verified as matters of fact, and that single allegation, verified upon information and belief, is not a vital one. But both of these contentions become unimportant from the view which we take of the bill itself and the question of its sufficiency. There are general allegations of fraud in the .bill, but the only specific allegation of any kind, attacking the validity óf the judgment, which is the basis of the title of appellant Hopper, is that the appellee, the judgment defendant, owed nothing to the plaintiff, who recovered the judgment. That appellee had adequate remedy at law in this behalf, is only controverted by the allegation that the illness and death of her husband prevented a proper attention to her suit. This is in itself no ground for the intervention of a court of equity. There is no such showing of fraud, accident or mistake, as would warrant a court of equity in assuming jurisdiction to revise a judgment at law. Lucas v. Spencer, 27 Ill. 15. Aor is the allegation of inadequacy of price paid at the sheriff’s sale sufficient. O’Callaghan v. O’Callaghan, 91 Ill. 228. The bill, as presented by the record, whatever its sufficiency for any of the other ends of relief sought, is insufficient for any relief as to the judgment and sale as affecting the title of Hopper to the real estate in question. “It is clear, if the court was without jurisdiction to grant the ultimate relief prayed by the bill, it had no power to appoint the receiver,” etc. The People v. Weigley, 155 Ill. 491. The order is therefore reversed and the cause remanded.