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no proof that the defendant has paid, or become liable to pay, any solicitor's fees in connection with such dissolution.
7. APPEALS AND ERRORS—when an objection that injunction bond was improper is not preserved for review. An objection that the complainant was required to give an improper and burdensome injunction bond is not preserved for review, where the complainant, instead of refusing to give the bond and suffering a dismissal of the bill for that reason, gives the bond without objection and proceeds to a disposition of the case upon demurrer to the bill.
APPEAI, from the Appellate Court for the First District; heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
The New York National Exchange Bank commenced proceedings in the superior court of Cook county to revive a certain judgment for $1019.29 obtained by it against appellant in the latter part of 1903. It appears that the process against appellant was made returnable to the January term, 1906, and that the same was served prior to December 20, 1905. On December 30, 1905, appellant filed in the superior court of Cook county a bill in chancery seeking to restrain, by injunction, both the collection and revival of said judgment. The bill alleges that the judgment was rendered on the 11th day of November, 1903, upon a supposed promissory note purporting to be signed by W. S. Reed & Co. and payable to the order of the Ansonia Electric Company; that the said judgment was and is null and void and should be so declared by the court, for the reason that in entering said judgment and proceeding to the hearing of the cause leading up to the same the court had no jurisdiction over appellant, and he was not therefore before the court for any purpose, and had never been served with process in said cause and had no legal notice of the proceedings therein; that appellant has, and always had, a good defense to any suit which might be brought on said supposed note on which the judgment complained of was rendered; that said judgment is and was null and void, for the reason that no cause of action in favor of appellees is stated in the declaration on which judgment was rendered, and no evidence to support a judgment in said cause in favor of appellees and against appellant was or could have been properly introduced under the pleadings in said cause. The bill alleges irreparable injury in case of the enforcement of said judgment, and asks for an injunction restraining the collection of the judgment and further proceedings to revive the same. Appellees demurred to the bill upon the ground that the facts alleged therein would not constitute a good defense to the note upon which the judgment in question had been rendered. The demurrer was sustained by the court. Appellant then asked leave to amend the bill. The essential features of such amendments were, that appellant was precluded from urging a valid defense in said cause by reason of not having been served with process, and having, therefore, no knowledge of the proceedings by which the judgment was obtained; that the judgment was not only irregularly rendered but was also unjust, because there was no consideration for the alleged promissory note, as set forth in the declaration filed by appellees in said cause; that appellant did not at any time, and does not now, owe said judgment or any part thereof, and did not at any time, and does not now, owe the alleged indebtedness, or any part thereof, for which said judgment was rendered; that appellant never knew of said judgment, nor the proceedings in which the same was rendered, until after the year 1899. The court denied the motion to amend and dismissed the bill for want of equity. Leave was given appellees to file suggestion of damages, and upon the filing of the same the court allowed the sum of $100. Appellant prosecuted an appeal to the Appellate Court for the First District, where the judgment of the superior court was affirmed, and by his further appeal the record is brought to this court for review.
Mr. JUSTICE VICKERS delivered the opinion of the court:
In this case appellant seeks to restrain the revival and enforcement of a judgment at law against him. He places great reliance upon the allegations in his bill that no process was served upon him in the proceedings resulting in the judgment, and that he had no knowledge of the proceedings or of the judgment until after the expiration of the time allowed for the prosecution of an appeal or writ of error. It is the well settled rule of law in this State that courts of equity will not interfere to prevent the collection of a judgment, even though the judgment was rendered without service of process, unless a meritorious defense be shown. (Colson v. Leitch, 110 Ill. 504.) It would be useless to set aside a judgment at law unless it is shown that there would be a different result upon another trial at law. (Colson v. Leitch, supra; Telford v. Brinkerhoff, 163 III. 439.) It is not sufficient that a judgment is irregular, but it must be unjust before equity will interfere. A showing in the bill for injunction that the judgment in question was obtained without process does not show, nor tend to show, that if process had been served and defense interposed the result of the suit would have been different. In the case at bar appellant alleges in his bill that the judgment complained of was obtained without service of process, and the court, upon demurrer, held, and we think properly, that this was not a sufficient showing of a valid defense to justify the intervention of equity. Everything in this bill might be true and still the judgment might have been by confession under a power of attorney contained in the note, waiving notice and service of process.
Appellant alleges that he has always had a good defense to any action which might be brought on the supposed note, but he fails to allege any of the facts constituting such defense. The mere statement that he has a good defense is not sufficient to justify a court of equity in entertaining the bill. In suits for injunction the general rule of equity pleading is, that the cause of action should be set forth with such particularity as to enable the chancellor, from an inspection of the bill alone, to grant the relief sought. The pleader must allege the facts entitling him to an injunction with precision and certainty, so as to distinctly inform the opposite party of the nature of the case which he is called upon to meet, and if the bill contains only indefinite allegations a demurrer will be sustained. The bill must set forth facts and not mere conclusions of law, and if conclusions are used they must be supported by allegations of fact. (Dill v. Wabash Valley Railroad Co. 21 Ill. 90; O'Kane v. Treat, 25 id. 458; Taylor v. Thompson, 42 id. 9; Pacific Hotel Co. v. Lieb, 83 id. 602.) Applying these rules to the case at bar it is apparent that appellant has not stated a case which will justify equitable relief by injunction against a judgment at law. In High on Injunctions (vol. 1, 4th ed. sec. 126,) the rule is stated as follows: “It is not sufficient to bring the case within the rule that the bill should allege, generally, that the complainant has a good defense to the action at law and that it would be inequitable to enforce it, but the facts constituting such defense should be clearly set forth.” For a court of equity to entertain a bill and enter upon a hearing of the evidence touching the merits of the case without any previous information in the pleadings as to what the evidence would be, would amount to such court converting itself into a court of appeals in matters at law. To justify the interposition of equity the bill must allege facts which, if true, would warrant the relief prayed for. The bill in the case at bar did not allege facts but set forth conclusions, and was therefore properly held insufficient. The proposed amendments would have made the bill no better under the above rules, and the court did not err in denying appellant leave to file them.
Appellant insists that the court erred in requiring hirn to give an improper and burdensome injunction bond. This question is not open for review on this appeal. Appellant gave the bond and secured the writ. If he had refused to give the bond and suffered a dismissal of his bill the question could have been raised. But there is nothing in the point raised even if properly presented. The bond required was the statutory bond and contained no condition not warranted by section 8 of chapter 69, Hurd's Revised Statutes
It is next insisted that the court erred in awarding $100 damages as solicitor's fees. This being an injunction to stay the collection of a money judgment at law, section II of chapter 72 of the Revised Statutes of 1845, now found as section 8 of chapter 69 of Starr & Curtis' Revised Statutes, on page 2144, applies. In said section it is provided that “if the injunction be dissolved in the whole or in part, the complainant shall pay, exclusive of legal interest and costs, such damages as the court shall award, not exceeding ten percentum, on such part as may be released from the injunction." Under this statute it is contended that damages can be allowed, in addition to the interest and costs, of not exceeding ten per cent of the judgment, without any evidence and without regard to the actual damages. Such a construction of this statute does not seem to be warranted by its language or to accord with equitable principles. The statute requires the payment of “such damages as the court shall award, not exceeding ten percentum, on such part as may be released from the injunction." The clause "not exceeding ten percentum” is in the nature of a limitation of the amount of damages that may be awarded, but it does not imply that the damages may be arbitrarily fixed by the court at ten per cent of the judgment released, or any other amount within that limit, without any regard to the actual damages sustained.