Syllabus. Opinion of the Court.

JOHN SOUERBRY

v.

OTTO FISHER.

1. JUDGMENT-setting default aside-discretion. Appellant was sued jointly with another in trespass for an assault and battery. His co-defendant employed counsel who filed a plea of the general issue for both, there being no service. The counsel, about three years afterward, procured the entry of a nolle as to the co-defendant, and abandoned the defense of appellant, on the ground that he had paid no fee, and his default was taken, and damages assessed at $500, upon which judgment was rendered. He at the same term moved to set aside the judgment and for leave to defend, showing that he was not guilty, and that the other defendant who had committed the trespass had agreed to defend. The court overruled the motion: Held, that the court erred in refusing the motion.

APPEAL from the Superior Court of Cook County; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. SHUFELDT & BALL, for the appellant.

Mr. FRANCIS A. HOFFMAN, for the appellee.

Per CURIAM: If courts are created for the purpose of administering justice, the default and judgment, in this case, should have been set aside.

At the June term, 1868, of the Superior Court of Chicago, a declaration in trespass for assault and battery was filed in said court, against appellant and one Beebee.

King appeared as attorney for defendants, and filed the general issue at the July term, 1868. No summons appears in the record.

The case lingered in court until the June term, 1871, when a nolle prosequi was entered as to Beebee, and also the default of appellant; a jury called and sworn to assess the damages, and a verdict returned for $500, upon which judgment was rendered.

At the same term a motion was made to set aside the judgment, and allow a defense.

62 135 37a 395

62 135

d94a 428

Opinion of the Court.

The affidavits filed, pro and con, show that the nolle was entered at the suggestion of King, so that he might abandon the case as to the appellant, because he had not paid him his portion of the fee; that he had been employed to defend for both; was to receive $25 from each of the defendants; that Beebee had paid him $25, and appellant, though often promising, had refused to pay; that a few days prior to the default he notified appellant that he must pay, or obtain other counsel; and that appellant declined, claiming that the defense of the suit was the business of his co-defendant; but King does not state that he informed appellant of the particular day for trial, or that he would have the cause dismissed as to Beebee.

Other affidavits, with one exception (which we shall notice), show that Beebee was the really guilty party, and that appellant had no connection with the alleged trespass; that he neither aided by act nor countenance, and was in fact absent at the time of the difficulty between Beebee and the plaintiff; and that appellant, knowing that he was only a nominal party, relied upon his co-defendant to make the defense.

Hoffman, the attorney for the plaintiff, stated, in his affidavit, that appellant "had fairly admitted to him the commission of all the trespasses laid to his charge in the declaration." This is a very unusual admission, and, in view of the statements in the other affidavits, is a very strange one.

The affidavit is too general, and is of that character which is not entitled to weight in comparison with other proofs in the case.

King, as he says, "had kept an eye on the case" for three years. He had filed the general issue and "kept an eye on the case," during all this time, for $25. Through his agency alone was appellant in court, for no summons had been served upon him, and if he would not defend without the payment of his fee, he ought not to have pleaded. A retainer should have been deemed as necessary in the one case as in the other.

He should, then, instead of the abandonment of appellant to a most unrighteous default, have placed him where he found

Opinion of the Court. Syllabus.

him. It seems that appellant was regarded as amply responsible, for the plaintiff was willing to risk him for the payment of the judgment.

The manner and circumstances under which the judgment was obtained do not recommend it to our sense of right or justice. The bargain in court to screen the guilty and punish the innocent is opposed to every principle of law.

A man has been mulcted in $500 for acts which he never committed. The injustice is so apparent that we feel that it is our duty to control the discretion of the court below.

From the facts before us this judgment unvacated would be a standing record of wrong and oppression to an innocent man. Mason v. McNamara, 57 Ill. 274.

It is ordered that the judgment be vacated, the default set aside, and appellant be allowed to make his defense to the

suit.

The judgment is reversed and the cause remanded.

Judgment reversed.

MICHAEL CAHILL

V.

JAMES WILSON.

1. HOMESTEAD-lost by abandonment. In 1859 a husband and wife executed a deed of trust upon premises which had been occupied by them as a homestead, the title to which was in the wife, there being no release of the homestead right. Two years prior thereto they removed from the premises and were continuously absent until 1862, a period of five years, one year of which they resided out of the county. The husband when he left had contracted to open a farm upon which he was to reside three years. During the absence the home premises were rented to different persons. They were sold under the trust deed in March, 1861: Held, that the homestead right was lost by abandonment, and that the lien attached while such abandonment was complete, and could not be defeated by returning and residing on the premises.

2. When a party left his homestead some two years before he incumbered the same, and changed his residence, accompanied by his family, with a view of opening a farm and bettering his condition, it seems that the

Syllabus. Opinion of the Court.

creditor could not be charged with information that the premises were claimed as a homestead, except by the actual residence of the party. The occupancy of a tenant will afford no notice of the right.

APPEAL from the Circuit Court of Stephenson County; the Hon. BENJ. R. SHELDON, Judge, presiding.

Mr. J. A. CRAIN, for the appellant.

Mr. U. D. MEACHAM, for the appellee.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

The only question for determination is: Was there a homestead right, which would defeat a recovery in ejectment?

In February, 1859, appellee and wife executed a trust deed on the premises in controversy. At a sale thereunder appellant purchased the property, and obtained a deed in March, 1861. The fee was in the wife of appellee at the date of the trust deed, which was formal in every respect, except there was no release of the homestead.

Was there an abandonment?

The evidence clearly shows that appellee and his wife, in 1857-two years prior to the execution of the trust deed-removed from the premises, and were continuously absent therefrom until in March, 1862; he had contracted to open a farm, upon which he was to remain for three years; for one year or more of the five years of absence the family resided in another county; during this time different persons had rented the property from appellee or his agent.

The only evidence bearing upon the intention to return and occupy the premises was, that appellee inquired of an attorney as to the mode of preserving his homestead rights.

The homestead, which might have been held under the law, was abandoned; a residence had been acquired elsewhere; and the abandonment was complete at the time of the execution of the trust deed; the continued absence without any manifestation of an intention to return confirmed the abandonment;

Opinion of the Court.

the party for whose benefit the trust deed was given had no information of the claim of a homestead right; under the circumstances of this case this could only exist by the actual residence of the party, and not by the occupancy of the tenant; the latter was no notice of the existence of the right, and its confirmation, in view of the conduct of the husband, would be the assurance of a fraud upon the purchaser. We can not encourage transactions tainted with bad faith.

The husband had the right to and did control the residence of the wife and children. He intentionally changed his residence, accompanied by his family, with the purpose of opening a farm and bettering his condition. The lien attached while the abandonment was perfect; and the return and residence on the premises, after the lapse of so many years, could not regain the lost right.

The principles involved in this case, and applicable to the facts, have been so fully decided and elaborately discussed in former opinions of this court, that it is only necessary to refer to them. Cabeen v. Mulligan, 37 Ill. 230; Phillips v. City of Springfield, 39 Ill. 83; Titman v. Moore, 43 Ill. 169; Fergus v. Woodworth, 44 Ill. 374; Buck v. Conlogue, 49 Ill. 392.

We are of opinion that, in this case, there was an abandonment of the homestead; and there was no satisfactory proof of the intention to return.

The judgment must be reversed and the cause remanded.

Judgment reversed.

JOHN HAMILTON

ข.

THOMAS ROOK.

1. SPECIFIC PERFORMANCE-laches, excuse for. A purchased three eightyacre tracts of land and a lot of two acres; and afterward being unable to