Farson v. Gorham
| Decision Date | 15 May 1886 |
| Citation | 117 Ill. 137,7 N.E. 104 |
| Parties | FARSON and others v. GORHAM. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to First district.
This was a bill in equity, brought by John Farson, trustee, against Gilbert A. Colby and others, to foreclose a certain trust deed which was executed on the first day of October, 1881, by Colby to Farson, on certain property in Chicago, to secure $19,500 due and owing Preston, Kean & Co. The bill alleged that Colby was insolvent, and prayed that a receiver be appointed to take possession of the premises, and collect the rents as provided in the deed of trust. On the fourteenth day of May, 1884, the court appointed William D. Preston receiver, who went into the possession of the property. Charles T. Gorham, the defendant in error, was made a party to the bill, but no service was had as to him when the receiver was appointed. On the third day of June, 1884, his appearance was entered, and on the fourteenth day of June he filed an answer to the bill. In the answer the defendant in error set up that he had previously obtained a judgment against Colby, upon which his equity of redemption in the mortgaged premises had been sold, and that he had received a sheriff's deed on the twentieth of May, 1884. He denied that Colby was insolvent; denied that there was any cause for the appointment of a receiver. He also set up that the mortgaged premises were worth $30,000, much more than the mortgage debt. After the filing of the answer the defendant in error entered a motion to vacate the order appointing the receiver, and that the possession of the property be turned over to him. The court heard the evidence on the motion, and entered an order that upon Gorham entering into a good and sufficient bond within 20 days, in the sum of $5,000, the receiver and his lessees immediately surrender the possession of the property and premises to Charles T. Gorham, to which Augustus D. Lamb, John Farson, and Frederick W. Hayes excepted, and prayed an appeal, which was denied. After the appeal was denied, the complainant in the bill sued out a writ of error from the appellate court to reverse the order, but on motion in the appellate court the writ of error was dismissed, and this writ of error was brought to reverse the judgment of the appellate court. Section 68 of the practice act provides, appeals from and writs of error to all circuit courts, the superior court of Cook county, and city courts, and from other courts from which such appeals and writs of error may be allowed by law, may be taken to the appellate courts from all final judgments, orders, and decrees, except as herein stated. The question presented is whether the order entered by the court was a final judgment, within the meaning of the statute.
The original bill to foreclose the deed of trust or mortgage, which must in the end finally settle the rights of the parties as to the property involved, is still pending and undetermined in the superior court. There are various orders made by a circuit court in the progress of a cause which may, for the time, more or less affect the rights of the parties, from which no appeal will lie; nor can a writ of error be prosecuted to reverse such orders, for the reason that such orders are not final within the meaning of the statute, but merely interlocutory. We regard the order in question of that character. When this case is heard on its merits, the order that has been entered may be vacated by the superior court in the final decree, and hence no necessity exists for removing that order until the final decree is rendered in the cause. This court has often decided that a case cannot be heard here by piecemeal. In Coates v. Cunningham, 80 Ill. 467, we held that a decree appointing a receiver is interlocutory, and a writ of error will not lie to reverse it. For the same reason a writ of error will not lie to reverse a decree removing a receiver, as was done by the decree here. It is true that the decree or order entered in this case gives the defendant in error the possession of the property, but that cannot in any manner impair the rights of the complainant, as the defendant in error was required to give bond and security, and all moneys which may come into his hands under the order will be subject to the final decree which the court may ultimately render in the cause. When the original bill is heard on its merits, and a final decree rendered which will definitely settle the rights of all the parties to the cause, it will then be ample time, if the decree is erroneous, for either party to appeal or sue out a writ of error. Then the entire record can be brought before the court for examination, and any error that may have intervened may be corrected.
Blake v. Blake, 80 Ill. 524, has been cited as an authority by plea in error. But that case has no bearing here. The decree appealed from there was one for the payment of money against a husband in a bill for divorce. The decree was one upon which an execution might issue. It was in effect an absolute moneyed judgment, and was in no manner connected with, nor did it depend upon, the final decree, which might ofttimes be rendered in the cause.
The decision of the appellate court dismissing the writ of error will be affirmed.
NOTE.
An appeal will lie from an order appointing a receiver. Leary v. Graeff, (Minn.) 16 N. W. Rep. 395. See Simon v. Schloss, (Minn.) 12 N. W. Rep. 196.
An order appointing a receiver is not appealable. Stebbins v. Savage, (Mont.) 5 Pac. Rep. 278.
A decision refusing to remove an assignee appointed under insolvent act is not appealable. In re Goldsmith, (Or.) 7 Pac. Rep. 97.
An appeal lies only from a final judgment. Norton v. Hood, 12 Fed. Rep. 763.
There is no final judgment, from which an appeal can be taken, until the judgment is actually rendered and entered upon the findings, and the costs taxed and inserted therein. Board of Sup'rs of Co. of Milwaukee v. Pabst, (Wis.) 25 N. W. Rep. 11.
An appeal will be dismissed where there does not affirmatively appear a judgment from which an appeal may be taken, and it will be dismissed upon this ground, although the parties failed to present the objection; for, being jurisdictional in its nature, the parties cannot waive it by silence or consent. Green v. Ronen, (Iowa,) 12 N. W. Rep. 765.
A judgment by default cannot be reviewed on appeal before a motion to open the default. Dols v. Baumhager, (Minn.) 10 N. W. Rep. 420.
A consent order cannot be appealed from. Chapin v. Perrin, (Mich.) 8 N. W. Rep. 721.
An order condemning land for the use of a railroad company is a final order, affecting a substantial right, and is appealable. Wisconsin Cent. R. Co. v. Cornell University, (Wis.) 5 N. W. Rep. 331.
A decree on a creditors' bill is a final decree, from which an appeal may be taken. Reed v. Baker, (Mich.) 3 N. W. Rep. 959.
A judgment on a verdict is a final order, from which an appeal will lie even though the judgment was entered on the motion of the defeated and appealing party. Warner v. Lockerby, (Minn.) 8 N. W. Rep. 879.
An order vacating a judgment on the ground of fraud and irregularity is appealable. Dryden v. Wyllis, (Iowa,) 1 N. W. Rep. 703.
In proceedings supplementary to execution, an order adjudging a stranger in contempt for faillng to appear and answer under an order requiring him so to do, but reserving the matter of punishment for future consideration, is not appealable. Menage v. Lustfield, (Minn.) 16 N. W. Rep. 398.
Refusal to entertain a cause sent by one court to another for trial, for want of jurisdiction, is appealable. Delaney v. Schuette, (Wis.) 5 N. W. Rep. 796.
No appeal can be taken from an order granting a change of venue. Graves v. Richmond, (Iowa,) 12 N. W. Rep. 80. See Allerton v. Eldridge, (Iowa,) 10 N. W. Rep. 252.
But when a motion for change of venue, by mutual understanding, is treated as a demurrer involving the merits of the case, in the court below, an appeal will lie. Lucas Co. v. Wilson, (Iowa,) 13 N. W. Rep. 325.
An order striking a cause from the calendar of the court, on the ground that it has been removed to another court for trial, (the validity of such attempted removal being disputed,) is appealable. Lee v. Buckheit, (Wis.) 4 N. W. Rep. 1077.
An appeal will lie from an order discharging a sheriff from liability for the seizure of goods upon process, and substituting other parties. Sunberg v. District Court of Linn Co., (Iowa,) 16 N. W. Rep. 724. See Sunberg v. Babcock, (Iowa,) 16 N. W. Rep. 716.
An appeal lies from a decree making an injunction perpetual. Crowell v. Horack, (Neb.) 12 N. W. Rep. 99.
An order modifying an injunction may be appealed from. Weaver v. Mississippi & Rum River Boom Co., (Minn.) 16 N. W. Rep. 269.
Mandamus is not appealable. State v. Lancaster Co., (Neb.) 13 N. W. Rep. 212.
A judgment for the payment of money, or stand imprisoned for contempt, in mandamus proceedings, is reviewable on appeal. Schwab v. Coots, (Mich.) 7 N. W. Rep. 61.
No appeal lies from an order overruling a special demurrer, with leave to answer. Turck v. Soule, (Mich.) 20 N. W. Rep. 822.
An order overruling a demurrer is not final, and no appeal will lie. Kirchner v. Wood, 12 N. W. Rep. 44. See Harris Manuf'g Co. v. Walsh, (Dak.) 3 N. W. Rep. 307.
An appeal will lie from a judgment dismissing an action, with costs. Rodgers v. Russell, (Neb.) 9 N. W. Rep. 547.
A decree settling the rights and interests of parties in partition is appealable. Williams v. Wells, (Iowa,) 16 N. W. Rep. 513.
An order striking out an answer is appealable. Harlan v. St. Paul, M. & M. Ry. Co., (Minn.) 18 N. W. Rep. 147.
An appeal lies from an order striking from the pleadings all allegations having reference to one of the material issues raised. Stanley v. City of Davenport, (Iowa,) 2 N. W. Rep. 1064. See Vermilye v. Vermilye, (Minn.) 18 N. W. Rep. 832.
An order striking out redundant matter from an answer is not appealable. Carpenter v. Reynolds, (Wis.) 17 N. W....
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