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64 Ill. App. 297

Harbert v. Mershon

Appellate Court of Illinois

Decided May 14, 1896

Appellate Court of Illinois · decided 1896-05-14

<p>1. Equity Practice—Dismissal of the Bill upon the Filing of a Sworn Answer.—A complainant filed a judgment creditor’s bill calling upon the defendants to answer under oath, which they did, denying every allegation of the bill upon which the complainants could have any relief, upon which the court dismissed the bill for want of jurisdiction to proceed further. Held proper, under the authority of Addyston Pipe and Steel Company v. City of Chicago, Legal News, April 4,1896, p. 256.</p>

Relies on Bouton v. Smith · Philadelphia Fire Insurance v. Central National Bank · Heisler v. Dickinson

Affirmed · Decided 1896-05-14

Mr. Presiding Justice Gary

¶1delivered the opinion of the Court.

¶2The appellant filed a judgment creditor’s bill, calling upon the appellees to answer under oath, which they did, denying everything upon which the appellant could have any relief. Thereupon the court dismissed the bill for want of jurisdiction to proceed further.

¶3This action was in accord with the opinion of this court in Phila. Ins. Co. v. Cent. Nat. Bk., 1 Ill. App. 344, and N. S. Ins. Co. v. Cent. Nat. Bk., 7 Ill. App. 426, and with the opinion of the Appellate Court of the Third District in Fifield v. Gorton, 15 Ill. App. 458, in neither of which cases was Sec. 25, Ch. 22, “ Chancery,” alluded to. But the action of the court was in opposition to the opinion of this court in Heisler v. Dickinson, 17 Ill. App. 193, and Schroeter v. Brown, 59 111. App. 24, in neither of which cases was either of the three earlier cases alluded to. In Addyston Pipe and Steel Company v. City of Chicago, 58 Ill. App. 273, we decided that the city could not be made defendant to a bill of this character, and March 28, 1896, the Supreme Court reversed our judgment (Legal Hews, April 4, 1896, p. 256), distinguishing the case from Merwin v. City of Chicago, 45 111. 133, on the ground that if the answer of the city denied indebtedness that would be the end of the litigation, and cited the three cases herein first cited, as well as Bouton v. Smith, 113 Ill. 481, as authority, and still with no allusion, either in the opinion reversing our judgment or in Bouton v. Smith, to Sec. 25.

¶4We may believe that the reason for distinguishing from Merwin v. City of Chicago is not well founded, but it is our business to obey, not to criticise, the decision.

¶5The Circuit Court acted upon the doctrine approved by the Supreme Court, and the decree appealed from is affirmed.

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