#### Charles H. Harbert v. Stephen L. Mershon et al.

Opinion filed November 8, 1897.

1. Discovery—disclosures by answer to bill requiring discovery are not conclusive. Under section 25 of the Chancery act (Rev. Stat. 1874, p. 201,) disclosures made by answer to a bill in chancery requiring a discovery concerning matters charged therein are not conclusive, but, upon replication being filed, may be disproved or contradicted.

2. Practice-fin chancery—when creditor’s bill is improperly dismissed. A bill in chancery good upon its face as a creditor’s bill cannot be dismissed, on motion of the defendants, without taking evidence, except for want of prosecution.

Harbert v. Mershon, 64 Ill. App. 297, reversed.

Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Elbridge Hanecy, Judge, presiding.

This was a creditor’s bill brought by appellant, against appellees, alleging a judgment against two of appellees, which was assigned to the complainant, and on which execution had been issued and returned nulla bona and unsatisfied. The bill alleged that certain co-defendants of the judgment debtors held property in trust for the latter, and prayed a discovery from all the defendants, and that the property discovered be subject to the payment of the judgment. Defendants answered, admitting the allegations as to the judgment but denying all other allegations. Replications were filed, and the cause was referred to a master to take proof and report the same with his conclusions. Afterwards, defendants’ solicitor made a motion to dismiss the cause for want of jurisdiction, as disclosed by the answers. The reason urged by counsel for the defendants in support of the motion to dismiss the bill for want of jurisdiction was that, in as-*53much as the answers of the defendants did not disclose any assets belonging to the judgment debtors, the cause was at an end and the court had no jurisdiction to proceed further. The court granted the motion, from which order the complainant appealed to the Appellate Court, and that court affirmed the decree. From that judgment of affirmance this appeal is prosecuted, a certificate of importance having been given.

Harbert & Daley, for appellant.

Millard R. Powers, for appellees.

Mr. Chief Justice Phillips

delivered the opinion of the court:

This bill was in form a creditor’s bill for discovery and relief, and by their answers the defendants traversed all the allegations except as to the judgment, the issue and the return of execution. Replication was filed. The court, on motion of defendants, dismissed the bill without hearing any evidence.

Under the early chancery practice a bill for discovery, strictly so-called because exhausted as soon as discovery was made, was almost invariably brought in aid of an action at law and prayed for no relief. On the coming in of the answer the function of the bill ended, and nothing further remained to be done on the equity side of the court. (Story’s Eq. PL sec. 311.) Early in the legislation of this State section 25 of chapter 22 of the Revised Statutes was adopted, which provides: “When the complainant shall require a discovery respecting the matters charged in the bill, the disclosure shall not be deemed conclusive, but if a replication be filed may be disproved or contradicted like any other testimony, according to the practice of courts of equity.” Under this section the right of the complainant to adduce testimony to contradict the answer and maintain the allegations of *54the bill was provided for and secured. The bill for discovery and relief is like any other bill for relief, which, if good on its face, cannot properly be dismissed, on motion of defendant, without evidence. The bill here was good on its face as a creditor’s bill. On no theory could the court properly dismiss the bill on defendants’ motion without evidence, except for want of prosecution. It was error to dismiss the bill.

Without entering into a discussion of the cases that were referred to in the opinion of the Appellate Court, it is sufficient to say it does not appear that the foregoing provision of the statute was discussed or referred to. The statute is clear and explicit.

The decree of the circuit court of Cook county and the judgment of the Appellate Court for the First District are each reversed and the cause remanded.

Reversed and remanded.