Friedberg v. DePew

<p>Abstract of the Decision.</p> <p>1. Contracts, § 190*—when separate papers considered as one instrument. Where two papers signed are a part of the same transaction, one signed by one party to the contract and the other by the other party thereto, both papers constitute one contract and are to be considered as one instrument.</p> <p>2. Judgment, § 343*—when Mil to restrain enforcement of execution on judgment by confession defective. In a suit to restrain the enforcement of an execution on a judgment alleged to have been entered by confession upon a pretended power of attorney, purporting to have been signed by the complainant, a bill alleging that the complainant did not, to his knowledge, execute such a power, or, if he did, its execution was procured by fraud, and having attached to it as an exhibit a paper alleged to evidence a contract entered into between the complainant and defendant, but which appeared to be only a part of an instrument evidencing the entire contract as entered into, held defective, inasmuch as the other part of the instrument might contain the power of attorney upon which such judgment was entered.</p> <p>3. Judgment, § 343*—when bill to restrain enforcement of execution on judgment by confession on power of attorney insufficient. In a bill to restrain the enforcement of an execution alleged to have been issued upon a pretended judgment entered upon a paper pretended to contain a power of attorney to confess judgment against the complainant, allegations that if the paper contained the complainant’s signature it was a forgery, but if the signature was genuine it was obtained by misrepresentation, fraud, false pretenses and circumvention, held to be inconsistent, and neither a positive allegation that the signature was a forgery nor that it was genuine, but was obtained by fraud and misrepresentation, and insufficient in not stating facts upon which the claim of fraud and misrepresentation was based.</p> <p>4. Judgment, § 343*—what bill to restrain enforcement of judg-. ment on ground of fraud must contain. While equity takes concurrent jurisdiction with law courts in matters of fraud, accident or mistake, the facts constituting such fraud, accident or mistake, as a defense to the enforcement of a judgment, must be set out in a bill to restrain its enforcement.</p> <p>5. Judgment, § 321*—when injunction lies to restrain enforcement of execution. To entitle one to an injunction to restrain the enforcement of an execution on the ground of fraud, a'ceident or mistake, it must be evident not only that the complainant had a defense upon the merits to the action in which such judgment was entered, but that such defense has been lost to him without the loss being attributable to his own omission, negligence or default.</p> <p>6. Judgment, § 309*—when injunction to restrain enforcement of judgment denied. Injunction to restrain the enforcement of an • execution on a judgment, the entry of which the complainant alleged first came to his knowledge after the close of the term at which it was entered, held properly denied, as the complainant had an adequate remedy at law inasmuch as he could, at the succeeding term, have filed a motion to vacate the judgment and for leave to plead.</p> <p>7. Judgment, § 80*—-when motion to vacate in time. A motion to vacate a judgment by confession, filed at the next ensuing term after a confession of the judgment, is in apt time.</p> <p>8. Execution, § 104*—what proper method of relief from improper levy of execution. The proper method of relief against an improper levy of an execution is by application to the court issuing the execution to quash the levy.</p> <p>9. Injunction, § 170*—what county a hill to restrain proceedings at law to he filed in. A bill to restrain proceedings at law must be filed in the county in which such proceedings are being taken.</p>