Bingham v. Isham

• Decision Date: 19 June 1907
• Citation: 227 Ill. 634,81 N.E. 690
• Parties: BINGHAM et al. v. ISHAM et al.
• Court: Illinois Supreme Court

227 Ill. 634

81 N.E. 690

BINGHAM et al.

v.ISHAM et al.

Supreme Court of Illinois.

June 19, 1907.

Appeal from Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; Harry Higbee, Judge.

Suit by Giles L. Isham and others against Charles L. Bingham and others. From a judgment of the Appellate Court (126 Ill. App. 513), reversing a decree dismissing the bill, defendants appeal. Appeal dismissed.

Edmund W. Burke and Swift, Campbell & Jones, for appellants.

A. Page Smith and Woodley & Pendleton, for appellees.

SCOTT, J.

Appellees filed their bill in the circuit court of Cook county to contest and set aside a nuncupative will purporting to have been made by Sarah J. Leonard and which had been admitted to probate in that county. By agreement of the parties a jury was waived and the cause heard by the court. The bill was dismissed for want of equity, and the contenstants presented the record to the Appellate Court of the First District for review by appeal. The cause was assigned to the Branch Court, and by that court the decree of the circuit court was reversed and the cause remanded, and from that judgment of the Appellate Court the proponents have prosecuted this appeal.

By the judgment of the Appellate Court the decree of the circuit court was reversed and the cause remanded to the latter court ‘for further proceedings not inconsistent with the views expressed in the opinion of this court this day filed herein,’ and the question arises whether this is such a judgment as gives this court jurisdiction to entertain an appeal. It is contended that the case falls within that clause of section 91 of chapter 110 of Hurd's Revised Statutes of 1905, which provides for an appeal from the Appellate Court to this court ‘if the judgment, order or decree of the Appellate Court be such that no further proceedings can be had in the court below, except to carry into effect the mandate of the Appellate Court.’ It is apparent that this clause authorizes an appeal only when the judgment of the Appellate Court determines the question or questions at issue in litigation upon the merits.

In Re Maher, 210 Ill. 160, 71 N. E. 438, in discussing an analogous question, it was said (page 164 of 210 Ill.,page 440 of 71 N. E.): ‘Where this court, in considering a cause, determines the issues and decides the questions involved upon their merits, and the case is reversed and remanded, with directions ‘to proceed in conformity with the views'...