Whalen v. Billings

Mr. Justice Windes delivered the opinion of the court. Plaintiff in error argues at length that the Circuit Court had no jurisdiction to render the chancery decree against him, but he has assigned no error in that regard as a basis for his contention, and can not, therefore, under repeated decisions, be heard upon that point. However, if it can be said that the assignment of errors is sufficient to raise the question, still we are of opinion that there is sufficient in the decree to show that the chancery court had before it matters of equitable cognizance. None of the pleadings in the chancery case were offered in evidence, but it appears from the decree that the cause came on to be heard before the Circuit Court upon the original bill of said Billings as amended, the respective answers of said Whalen and other defendants, replications to such answers, and the respective cross-bills of said Whalen, Fuller, and the Home National Bank, the respective answers of Whalen et, al. to said cross-bills, replications to the same respectively, and depositions, oral testimony and documentary evidence, and thereupon the court proceeded to find numerous matters of fact, unnecessary here to be detailed, from which it clearly appears that Whalen was guilty of making numerous false and fraudulent representations of fact, by means of which he procured from Billings and other parties to the cause the execution of different documents, the transfer of stock in certain mining corporations, the payment of large sums of money by Billings to Whalen, and the receipt of certain deeds by Whalen, conveying to said Billings certain mining properties, and a re-conveyance by Billings of the same properties to Whalen; also that Whalen commenced and caused to be commenced by others certain fraudulent suits against said Billings, which were wholly without basis, and the court thereupon decreed, among other things, that the said conveyances from Whalen to Billings were in the nature of mortgages only, to secure ' money advanced by Billings to Whalen; that there was then, on May 12-, 1885, due from Whalen to said Billings the sum of $14,202, which Whalen was ordered to pay to Billings forthwith, with interest from the date of the decree at six per cent per annum, and that “ in default of such payment as aforesaid, said Billings, at his election, have execution of fieri facias or of capias ad satisfaciendum therefor; ” also that Whalen should be enjoined and restrained from prosecuting said fraudulent suits. It is thus apparent that the chancery court had before it for consideration not only numerous matters of fraud, by reason of which relief by way of injunction was sought, but the determination of whether certain conveyances, a'bsolute in form, were in fact such, or whether they were mortgages. These were matters of general equity jurisdiction, and under the general and well-recognized rule, the court of chancery having obtained jurisdiction by reason of the matters indicated, it would retain the case for final determination of all matters at issue arising therefrom, and in its discretion may proceed to establish purely legal rights and grant legal remedies. 1 Story’s Eq. Juris. (12th Ed.), Sec. 64 K; Bispham’s Prin. of Eq. (5th Ed.), 58; Kelly v. Galbraith, 186 Ill. 593-608, and cases cited. Moreover, even if it could be said, as is contended, that the decree shows that there was an adequate remedy at law, still there can be no question from the findings of the decree, but that the matters under consideration were not wholly foreign to the jurisdiction of a court of chancery; and it appearing,-as is, shown by the statement and the decree, that Whalen answered the bill, and by his cross-bill invoked the equitable powers of the court, in the absence of any pleadings showing that he made objection to the jurisdiction of that court, it is now too late to raise the question in this court. A defendant in a chancery suit, who submits to the jurisdiction of the court when the bill shows any ground of equitable jurisdiction, can not, for the first time in a court of review, contend that there was an adequate remedy at law. Kelly case, supra; Yeager v. Manning, 183 Ill. 275 -7; Ry. Co. v. Munsell, 192 Ill. 430-4, and cases cited. Plaintiff in error further claims that even if the chancery court had jurisdiction, still it was without power to award the writ of capias ad satisfaciendum, but we are of opinion the contention is not sound. A personal decree in chancery has been declared the same in effect and placed upon the same basis as a judgment at law. Dinet v. Eigenmann, 80 Ill. 274-8; Winslow v. Leland, 128 Ill. 304-38, and cases cited. Such a writ for the enforcement of a money decree is, in our opinion, clearly authorized by the statute of this state. (Hurd, Ch. 22, Secs. 42 and 47.) They are as follows : “ Sec. 42. When any bill is taken for confessed, or upon hearing, the court may make such decree thereon as may be just, and may enforce such decree either by sequestration of real and personal estate, by attachment against the person, by fine or imprisonment, or both, by causing possession of real and personal estate to be delivered to the party entitled thereto, or by ordering the demand of the complainant to be paid out of the effects or estate sequestered, or which are included in such decree, and by the exercise of such other powers as pertain to courts of chancery, and which may be necessary for the attainment of justice.” “ Sec. 47. When there shall be no direction that a master in chancery or commissioner execute a decree, the same may be carried into effect by execution, or other final process, according to the nature of the case, directed to the sheriff or other officer of the proper county, which, when issued, shall be executed and returned by the sheriff or other officer to whom it may be directed, and shall have the same operation and force as similar writs issued upon a judgment at law. The sheriff, or other officer to whom the same is directed, shall be subject to the like penalties and recoveries for misconduct or neglect in the execution of return thereof, as in cases at law, or the court may, if necessary, direct an attachment to be issued against the party disobeying such decree, and fine or imprison him, or both, in the discretion of the court, and may also direct a sequestration for disobedience of any decree.” In Freeman on Executions (2d Ed., Sec. 8a, p. 15,) the author says, in effect, that where a decree is for the payment of money, and a statute gives the authority to issue writs appropriate for its enforcement, satisfaction of such a decree may be sought by “capias ad- satisfaciendum, in any case where such writ would be proper, had the recovery been in law instead of equity.” We are of opinion that section 42, above quoted, by the words “by attachment against the person, by fine or imprisonment, or both,” gives a chancery court power to enforce its decrees by the writ of capias ad satisfaciendtom. Such a writ provides for the attachment of the person and imprisonment, and is within the meaning of the statute. By the use, in section 47, above quoted, of the words, viz., “the same may be carried into effect by execution or other final process, according to the nature of the case,” we think a chancery court is given the power to issue a capias ad satisfaciendum under a decree like the one here in question. The findings of the decree, in our opinion, clearly establish fraud, or in other words, a tort, on the part of plaintiff in error, and they must be taken as true for the purposes of this decision. Such being the case, the writ here in question under our statute (Ch. 77, Sec. 5, Hurd,) with reference to an execution against the body of a defendant, was an appropriate writ, and is a “final process according to the nature of the case.” See also, Weightman v. Hatch, 17 Ill. 281-6, in which it is held that the same remedies to enforce the collection of a chancery decree for money may be resorted to as in the case of a judgment at law. Also Keith v. Henkleman, 173 Ill. 137-41, and the Kelly case, supra. The case of Armsby v. People, 20 Ill. 155, relied on by plaintiff in error in this connection, does not sustain him. It follows from the foregoing that the imprisonment of plaintiff in error set up in his affidavit was legal, and can not be the basis for a plea of duress. There is no statement of any facts to show that there was a lack of consideration for the notes in question, but on the contrary the proof shows that there was full consideration therefor in the amount found due by the decree from Whalen to Billings, together with interest which had accrued thereon. There is, however, ample reason for sustaining the action of the learned circuit judge in the fact that no meritorious defense to the plaintiff’s claim is shown. In an application to set aside a judgment by confession, a court of law exercises an equitable jurisdiction, and if the debtor fails to show that he had a defense to the whole or some part of the judgment, relief will be denied. Blake v. State Bank, 178 Ill. 182-4; Colson v. Leitch, 110 Ill. 504-8; Hier v. Kaufman, 134 Ill. 215-26; Berg v. Com’l Nat. Bk., 84 Ill. App. 614-18, and cases cited; Rogan v. Eads, 101 Ill. App. 509, and cases cited; Gilmore v. German Savings Bank, 89 Ill. App. 442. The judgment is affirmed.