Chapman v. Kane

Mr. Justice Adams delivered the opinion of the court. No brief or argument has been filed for defendant in error. Counsel for plaintiffs in error contend that the decree should be reversed for two reasons: First, assuming the allegations of the bill to be true, defendant in error had a legal remedy by writ of certiorari; secondly, there is no basis for the decree in the record, either in evidence properly preserved, or in findings of fact by the court. If an unjust judgment has been rendered against a party, and he himself has not been negligent, and has been prevented by the other party to the suit from appealing within the statutory time, he has a remedy by writ of certiorari. Gibson v. Ackermann, 70 Ill. App. 399. In Graff v. Smolensky, 35 Ill. App. 264, a case similar in its main features to that stated in the bill in this case, a writ of certiorari was sustained. We are of opinion that, assuming the averments of the bill to be true, the defendant in error had a legal remedy by writ of certiorari. Such being the case, a court of equity will not grant relief. Booth v. Koehler, 51 Ill. App. 370. There must be a basis for a decree either in the evidence or in findings of fact in the decree. The evidence must be preserved in some form, as by depositions, the report of a master, or a certificate of evidence. In the present case no evidence has been preserved in any way, so that, so far as appears from the record,- the decree is wholly unsupported by evidence. Neither are there any findings of fact in the decree. There being neither evidence preserved in any manner, nor any findings of fact in the decree, there is no basis for the decree, even assuming that in the case stated in the bill, the court could assume jurisdiction. Baird v. Powers, 131 Ill. 66; First Nat. Bank v. Baker, 161 Ill. 281; Jele v. Lemberger, 163 Ib. 338, 344. The decree will be reversed and the cause remanded.