Adm’rs of Wasden Driggers v. David A. Bell.
Damages on dissolution on injunction. — To confer jurisdiction to hear evidence and assess damages on dissolution -of an injunction, suggestions in writing should be filed and the evidence on that issue should be preserved in the record. When the evidence is not preserved in the record, no presumption will be indulged that it was heard.
Appeal from the Circuit Court of White county ; the Hon. Wm. C. Jones, Judge, presiding.
Opinion filed April 7, 1881.
Messrs. Bell & Green, Mr. Thomas G. Parker and Mr. Jasper Partridge, for appellant ;
as to appellant’s right in equity, to have his judgment set off against appellee’s judgment, cited Buckmaster v. Grundy, 3 Gilm. 626 ; Phelps v. Reeder, 39 Ill. 172 ; McJilton v. Love, 13 Ill. 487.
A party who voluntarily suffers a default, impliedly admits that the demand is just, and equity will afford him no relief: Miner v. Moore, 41 Ill. 273 ; Lucas v. Spencer, 27 Ill. 15 ; Walker v. Shreve 87, Ill. 474.
Evidence to support an assessment of damages must be pre served in the record : Moss v. McCall, 75 Ill. 190.
*255¡M>.'Johh M. Crebs, for appellee ;
as to the equitable rights of an, assignee of a judgment, cited Hughes v. Trahern, 64 Ill. 48 ; Ullman v. Kline, 87 Ill. 268.
The sale of land on execution extinguishes the. debt: Campbell v. Carter, 34 Ill. 286 ; Weiner v. Heintz, 17 Ill. 259 ; Miner v. Moore, 41 Ill. 273 ; Biggins v. Brockman, 63 Ill. 316 ; Hughes v. Frisby, 81 Ill. 188 ; Robins v. Swain, 68 Ill. 197.
Casey, J.
Appellant's intestate filed his bill in chancery in the Circuit Court of White county,against defendant, for an injunction and relief. On the trial of the cause the injunction was dissolved and the bill dismissed. On the dissolution of the injunction seventy-five dollars damages were assessed. The third error assigned is that: The circuit court erred in assessing the damages at the sum of seventy-five dollars, on dissolution of injunction, there being no proof of the quantum of damages. We have carefully examined the record and have been unable to find any evidence as to the amount of the damages. To confer jurisdiction on the court to hear evidence and assess damages on the dissolution of an injunction, suggestion in writing should be filed. The evidence on that issue should be preserved the same as upon any other question involved. When the evidence is not preserved in the record, no presumption will be indulged that it was heard. Moss v. McCall, 85 Ill. 190 ; Hamilton v. Stewart, 59 Ill. 330.
These cases are decisive of this question. Of the other questions presented by the record we do not express any opinion. For the reason given the judgment of the circuit court is reversed, and the cause remanded.
Reversed and remanded.