Allen v. Illinois Mineral Co.

• Decision Date: 13 March 1939
• Docket Number: Gen. No. 12.
• Citation: Allen v. Illinois Mineral Co., 299 Ill.App. 537, 20 N.E.2d 898 (Ill. App. 1939)
• Parties: ALLEN ET AL. v. ILLINOIS MINERAL CO. ET AL.
• Court: United States Appellate Court of Illinois

299 Ill.App. 537

20 N.E.2d 898

ALLEN ET AL.

v.ILLINOIS MINERAL CO. ET AL.

Gen. No. 12.

Appellate Court of Illinois, Fourth District.

March 13, 1939.

Appeal from Circuit Court, Alexander County; H. A. Spann, Judge.

Suit in chancery by Sidney J. Allen and another against the Illinois Mineral Company and others for an accounting and an injunction.From a decree dismissing the complaint for want of equity, plaintiffs appeal.

Decree affirmed.Joe Crain, of Mound City, and Miller & Miller, of Cairo, for appellants.

Dewey & Cummins, of Cairo, for appellees.

EDWARDS, Justice.

This is a suit in chancery brought by Sidney J. Allen and Ida C. Allen, his wife, against International Silica Company, Illinois Mineral Products Company, Aud M. Davis and Jesse Rhymer, defendants, in which plaintiffs ask for an accounting for silica said to have been taken from certain lands, which they claim to own, by virtue of a lease entered into between plaintiffs and defendantAud M. Davis, which was assignedby Davis to the International Silica Company, and by the latter assigned to the Illinois Mineral Company.The suit was subsequently dismissed as to the International Silica Company.Following the trial Ida C. Allen died, and Claude E. Allen, administrator of her estate, was substituted as a partyplaintiff.

Defendants admit the execution of the lease and title of plaintiffs to the land which it covered, but deny that any silica was mined under such premises or that an accounting was due, or that they were indebted to plaintiffs on such account.A decree was entered dismissing the complaint for want of equity, and plaintiffs seek by this appeal to reverse such order.

It is conceded by both parties that the silica mined by defendants was not taken from below the surface of the land to which plaintiffs had record title, but from under an adjoining tract which plaintiffs claim to own by adverse possession, which ownership is disputed by defendant Rhymer who asserts that he is the owner of same.In addition to the prayer for accounting, plaintiffs sought an injunction to restrain defendants from taking any more silica from such premises.

Plaintiffs' case is based upon their claim of adverse possession to the strip of land under which the silica was mined, and if they had not acquired title thereto by prescription their case falls.It will thus be seen that the foundation of plaintiffs' case is based upon the determination of the legal title to such land, which is a matter ordinarily to be decided by a court of law in an appropriate proceeding, and not to be heard in equity.Livingston County Building & Loan Ass'n v. Keach, 219 Ill. 9, 76 N.E. 72.The only way in which plaintiffs can invoke the aid of a court of chancery in such situation is upon the theory that an accounting of rents and royalties is necessary and of a character that will justify a court of equity in hearing same.

Defendants did not by motion, nor in their answer, set up a lack of jurisdiction of the trial court to entertain the cause, nor did they assert that plaintiffs had an adequate remedy at law in the premises.However, it appears to be the settled law of this State that such defense may be raised, though not claimed by motion or answer, where the proofs clearly establish that such accounting was unnecessary.Toledo St. L. & N. O. R. Co. v. St. L. & O. R. R., 208 Ill. 623, 70 N.E. 715;Hogg v. Hohmann, 330 Ill. 589, 162 N.E. 209.The rule is based upon the familiar principle that if a court has no jurisdiction of the subject matter of a suit the parties cannot, by consent or act, invest the court with such authority, and that lack of jurisdiction to hear a cause is a question which can be raised at any time it becomes manifest, whether proposed by the pleadings or not.

It is not every matter of account which is cognizable in equity.Corpus Juris Secundum, Accounting, vol. 1, page 646, § 14, states the law relative thereto as follows: “The true rule is that the mere existence of an account will not confer jurisdiction, and that to warrant the interference of equity there must be a fiduciary relation, or mutual or complicated accounts or a need of discovery, or some other special ground of equitable jurisdiction, such as fraud, unless the circumstances of the fraud are such that adequate relief could be had in a court of law.”

In County of Cook v. Davis, 143 Ill. 151, 32 N.E. 176, 177, an accounting suit, in passing upon this propositionthe court ruled: “When a court of law is competent to afford an adequate and ample remedy, courts of equity will remit the parties to the courts of law, where the right of trial by jury is secured to them.In such cases either party has a right to demand that the matter of the defendant's liability be submitted to a jury, according to the course of the common law, and unless some special and substantial ground of equity jurisdiction be alleged, and, if necessary, proved,]]such as that a lien exists for the money demand which cannot be adequately enforced at law, or that...