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Plaintiff in error contends that as the trust deeds were executed after she had filed her bill for separate maintenance, defendants in error took lis pendens. In order to bring the doctrine of lis pendens into effect it is essential that the litigation should be about some specific thing which will necessarily be affected by the determination of the suit. The particular property involved must be so pointed out as to warn the world that they may intermeddle at their peril. (Freeman on Judgments, secs. 196-198.) The same author says, in a suit for divorce and alimony, if the complainant does not designate particular property and seek to subject it to the wife's claims or have it set aside as hers or for her use, the doctrine of lis pendens does not apply. To the same effect are Sapp v. Wightman, 103 Ill. 150; Powell v. Campbell, (Nev.) 2 L. R. A. 615; Wilkinson v. Elliott, 43 Kan. 590; 19 Am. St. Rep. 158, and authorities referred to in those cases. (See, also, 25 Cyc. 1454, 1459; 2 Am. & Eng. Ency. of Law, 132.) The bill of plaintiff in error in the separate maintenance suit did not specifically describe the real estate involved in this litigation. It alleged Jacob H. Lesher was the owner of certain real estate in certain localities mentioned, but asserted no claim or right in any specific parcel and did not ask that any of the land be set off or assigned to the complainant therein. Under all the authorities the pendency of the suit was not notice that affected the rights of purchasers.
The denial of leave to plaintiff in error to file a crossbill did not prejudice her, for the decree in the separate maintenance suit could be no more competent and conclusive against defendants in error if offered under a crossbill than if offered under an answer to the original bill. The judgments of the Appellate Court are affirmed.
THOMAS E. Wing, Defendant in Error, vs. G. J. LITTLE,
Plaintiff in Error.
Opinion filed February 17, 1915.
1. FRAUD—the maxim .that fraud vitiates transaction applies to judgments. The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions; nor is relief against a fraudulent judgment necessarily limited to the parties to the record or persons in privity with them.
2. Same—a collusive judgment is open to collateral attack. Whenever a judgment or a decree is procured by collusion between the parties for the purpose of defrauding a third party, the latter may attack the judgment or decree in a collateral proceeding and show the fact of such collusion, as a collusive judgment is open to attack whenever and wherever it may come in conflict with the rights and interests of third persons.
3. GAMING—seotion 133 of the Criminal Code construed. Sec'tion 133 of the Criminal Code, which makes the premises of one who knowingly permits gambling to be carried on there liable for the satisfaction of a judgment in favor of the loser against the winner in the gambling game, is a valid exercise of the police power of the State, and its similarity to section 10 of the Dramshop act is such that the same general rules of construction should be applied to both acts.
4. Same-a judgment for money lost in gambling is conclusive upon owner of premises as to amount of damages. A judgment recovered by the loser against the winner in a gambling game is conclusive as against the owner of the premises as to the amount of damages sustained although such owner was not a party to the suit and had no notice thereof, provided the owner knowingly permitted gambling to be carried on in the premises.
5. SAME-the owner of premises may show that judgment for money lost was collusive. One whose property is sought to be sold to satisfy a judgment in favor of the loser of a gambling game against the winner, in a suit to which such owner was not a party, is entitled to show in defense that the judgment was the result of collusion between the alleged winner and loser.
6. PLEADING-fact that cross-bill asks for more relief than the pleader is entitled to is not ground for dismissal. Where a bill is filed to subject the property of the defendant to payment of a judgment against his tenant for money lost in gambling, a cross-bill setting up collusion between the alleged winner and loser is proper, and the fact that the prayer, in addition to asking that the judg. ment be not enforced against the property, also asks that the judgment be set aside and declared void is not ground for dismissing the cross-bill for want of equity, even though a court of equity will not set aside such a judgment but will leave the parties in the position they have placed themselves.
WRIT OF ERROR to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. JAMES A. CREIGHTON, Judge, presiding.
John G. FRIEDMEYER, and ALBERT SALZENSTEIN, for plaintiff in error.
HARDIN W. MASTERS, and Thomas D. MASTERS, for defendant in error.
Mr. JUSTICE VICKERS delivered the opinion of the court:
On April 23, 1909, Thomas E. Wing brought an action in assumpsit in the circuit court of Sangamon county against Isaac Adams, in which he sought to recover $3000 alleged to have been lost by Wing and won by Adams at gaming. A summons issued to the sheriff of Sangamon county was returned “not found.” An alias summons issued to the sheriff of Adams county, returnable to the January term, 1910, was returned “served" on Adams. Adams made no appearance, and judgment was entered against him by default for the full amount claimed in the declaration. The judgment remaining unsatisfied, Wing filed a bill in equity against G. J. Little, as owner of certain premises, for the purpose of subjecting the same to the payment of said judgment under section 133 of the Criminal Code, which provides that buildings or premises which are knowingly permitted to be used or occupied as a common gaming house or as a place for persons to come together to play for money, shall be held liable for and may be sold to pay any judgment that may be recovered under section 132, The circuit court sustained a demurrer to an amended bill and dismissed the same for want of equity. The Appellate Court for the Third District held that the bill stated a good cause of action and reversed the decree of the circuit court and remanded the cause. (Wing v. Little, 163 Ill. App. 468.) The cause being re-instated in the circuit court, the defendant, Little, filed a plea of nul tiel record, upon which issue was joined, and a special plea setting up that complainant's judgment against Adams for $3000 was procured by fraud and collusion between Adams and Wing for the purpose of subjecting Little's property to the payment of the judgment, and averring that there was an understanding or contract between Wing and Adams that Adams should have a portion of the proceeds of said judgment when the same was collected from Little. The plea further averred that Wing did not lose $3000, or any other sum, to Adams in or upon the premises of Little. On motion of complainant this plea was stricken from the files. Little also filed an answer, in which he admits that he is the owner of the premises described in the bill but denies that he leased or rented the same to Adams or any other person for the purpose of being used as a gaming house; denies that he permitted gaming to be carried on in the said premises, and denies that he knowingly permitted any person or persons to occupy said premises as a common gambling house or for gaming purposes. Little also filed a cross-bill, in which he alleged that the judgment which was sought to be enforced by the original bill was obtained by fraud and collusion between Wing and Adams. In said cross-bill it is alleged that Little did not lease any room or rooms in said premises for gaming or knowingly permit gaming to be conducted therein; that said Wing did not lose in said premises the said sum of $3000, or any other sum for which said premises ought to be made liable. The prayer of the cross-bill was that the judgment for $3000 be set aside and vacated and that Wing be enjoined from
asserting any rights under said judgment against the crosscomplainant. A demurrer to the cross-bill was sustained and Little elected to stand by his bill. Complainant in the original bill filed a replication to the amended answer and the cause proceeded to a hearing. An issue of fact was made up and submitted to a jury. The only question submitted to the jury by the court was, “Did the defendant, G. J. Little, at any time during the month of November, 1908, or subsequently thereto, and prior to the 26th day of February, 1909, knowingly permit the premises described in the amended bill of complaint to be used or occupied as and for a place where games of chance for money or other valuable thing were played ?” This question was answered in the affirmative by the jury. The court overruled a motion to vacate the verdict of the jury and proceeded to hear the cause in open court, and found the issues on the original bill in favor of the complainant and against the defendant and entered a decree in accordance with the prayer of the bill. The Appellate Court for the Third District affirmed the decree, and the record has been transferred to this court as a return to a writ of certiorari.
Both the trial and Appellate Courts seem to have proceeded on the theory that the judgment at law against Adams was conclusive of every question that might have been raised by plaintiff in error by way of defense if he had been made a party to that proceeding, and the error assigned upon such ruling is the important question to be determined in this court. It is not pretended that plaintiff in error, Little, was a party to or had any notice of the pendency of the suit in which the judgment was recovered to pay which his property is sought to be sold. The trial court was of the opinion that the only question which plaintiff in error could raise in the proceeding to subject his property to the payment of the judgment was whether he had knowingly permitted the premises to be used as a gaming house, and in pursuance of this view that question was