Cable v. Ellis

• Decision Date: 22 March 1887
• Citation: 11 N.E. 188,120 Ill. 136
• Parties: CABLE, EX'r, and others v. ELLIS and others.
• Court: Illinois Supreme Court

120 Ill. 136

11 N.E. 188

CABLE, EX'r, and others

v.ELLIS and others.

Supreme Court of Illinois.

March 22, 1887.

Appeal from appellate court, Second district.

Chas. M. Osborne and H. W. Wells, for Cable.

C. Dunham, for intervenors.

Willlam Jack and W. W. Rathbun, for Rathbun.

Geo. W. Spaler and John Muckle, for Ellis.

R. L. Lyons and James S. Murray, for heirs, etc., of Austin, Sumner & Co.

SHOPE, J.

By the appeal from the judgment of the appellate court for the Second district, affirming the decree of the circuit court, this case is for the fourth time brought before this court,-first, as Sumner et al. v. Waugh, 56 Ill. 531, and thereafter as Cable v. Ellis, 86 Ill. 525, and Ellis v. Sisson, 96 Ill. 105. In the first of these cases such of the facts as were thought to be necessary were stated in the opinion, and accompanying the opinion in the other two cases will be found carefully prepared statements of the facts as they had then been developed.

When the cause was last before us, the decree of the appellate court was reversed, ‘and the cause remanded for further proceedings in conformity to this (that) opinion;’ and in remanding the cause to the circuit court the form of the order of the appellate court was: ‘Therefore, in obedience to said command, it is ordered by the court that the decree of the circuit court of Peoria county in this behalf rendered be reversed, annulled, set aside, and wholly for nothing esteemed, and that this cause be remanded to the circuit court of Peoria county for other and further proceedings in conformity to the opinion of the supreme court aforesaid.’ After the cause had been redocketed in the circuit court, appellant Cable exhibited his cross-bill, and made all the parties to the litigation, and then before the court, parties defendant thereto; and some sixteen persons, including the Rock Island & Mercer County Railroad Company, were permitted to file petitions in the cause as intervenors, whose rights were said to have been acquired since the commencement of the litigation; and the propriety of this action of the court is questioned.

By the eighty-first section of the practice act, (Starr & C. St. 1839,) it is provided ‘that the supreme court or appellate court, in case of a partial reversal, shall give such judgment or decree as the inferior court ought to have given, * * * or remand the cause for further proceedings, as the case may require.’

In construing this language of the statute in Chickering v. Failes, 29 Ill. 294, it was said: ‘On the previous trial, the court deemed it improper to render a decree in the case, but regarded it as equitable and conducive to justice that it should be remanded for further proceedings. The whole question grows out of the fact that the directions to proceed are general. If these general directions to the court below limit its power only to act upon the record of the case as it then existed, under the rules announced in the opinion, then the amendment of the answer, and the reception of additional evidence, was unwarranted. That the court below is concluded by the legal principles announced by the appellate tribunal is undeniable. But it by no means follows that other facts may not be proved, within the principles announced and amendments made which obviate objections to granting the relief sought, or to the allowance of a defense interposed. * * * When a reversal of the decree or judgment occurs, the judgment of the court below, as to the parties to the record, is entirely abrogated, and the cause then stands in the court below precisely as if no trial had occurred. The case is then remitted to that court in precisely the same condition, in all respects, as it occupied before the trial in that tribunal. The decree, by its reversal, is in effect expunged from the record, and the court has the same power over the record which it possessed before its decree or judgment was rendered. It then follows that when a decree is reversed, and the cause is remanded without specific directions, the circuit court has the power to allow amendments to the pleadings, and to permit the introduction of other evidence.’

The objection, therefore, is without force. It was within the discretion of the circuit court to allow the pleadings to be amended, and the introduction of other and further evidence to such extent as should seem necessary and conducive to justice; but in allowing amendments or new pleadings, in the introduction of further evidence, and in any decree it might thereafter render in the case, the court must not fail to recognize and observe the principles announced in the opinion of the superior tribunal. The history of this case furnishes a striking illustration of the application of the rule announced. The litigation was begun in 1861 by a bill filed by appellee Ellis. After the case had been brought to this court for the second time, and remanded to the circuit court, Ellis amended his bill, and thereby obviated the difficulty that till then had prevented his recovering. And no reason is perceived why any of the parties might not, after the third remandment, so amend their ‘bills, pleas, answers, and replications, on such terms as the court may deem proper, so that neither party be surprised nor unreasonably delayed thereby,’ (Starr & C. St. 409, § 37,) and particularly for a defendant to file a cross-bill after having answered, (Id. 407, § 30.) And it was equally within the discretion of the court, even after the third remandment, to allow a stranger to the record to intervene in the case, upon proper showing made by him.

But the controlling questions in the case are- First, whether, by the amendment to the pleadings made since the last trial in this court, any new issues have been raised, and, if so, what those issues are, and whether or not the court erred in its decree in respect thereto; and, second, whether the court erred in denying relief to the intervenors, and dismissing their petition.

The cross-bill exhibited by appellant Cable showed the exhibiting of the original bill by Ellis in 1861 against Waugh, Sisson, and Rathbun; that Ellis sought relief against all three defendants, and particularly to have Waugh declared equitably a party to the contract under which Ellis claimed both the Sisson and Waugh mortgages were to be released and surrendered; that, by subsequent bills, all the parties in interest were brought before the court, and the then three causes-under the Ellis bill, the Sumner bill, and the Cable bill-were consolidated; that issue was taken on all the bills, testimony taken, a trial had, decree rendered, appeal, and remandment; that on the next trial, in 1878, Ellis amended his bill and answers, alleging the verbal agreement of Waugh to release the notes and mortgage he held, and asking that Cable, the assignee of Waugh, and Waugh's heirs, should now be required to do so; that issue was taken on this amended Ellis bill, testimony taken, a trial had, decree rendered, which, on appeal, was reversed, and cause remanded; then shows the character of the Sumner bill, and the Cable bill, and the relief sought under each; then asks that his original bill and exhibits may be taken as part of his cross-bill, and refers to the record in all the cases for statement of fact, and that the testimony taken under those bills might be considered as taken under his cross-bill. He then says he had no personal knowledge of the contracts and agreements relied upon by Ellis and the other parties litigant before he bought the Waugh notes and mortgage, and, as to the verbal contract relied on by Ellis, he never heard of it till Ellis disclosed it in his amended bill, and the evidence then taken, and now he could not learn the truth because Waugh was dead; reaffirmed all his averments in his previous pleadings as of his own knowledge as true, that he did not believe the verdal contract set up by Ellis was true, but that, up to the time Ellis disclosed that lverbal contract, he (Cable) was entitled to the specific relief he had asked. He further alleged that the litigation on his part all grew out of Ellis' negsect to set up the verbal contract in his pleadings and evidence; and, if Ellis phould be entitled to priority over him because of that contract, it was then troper for him to set up by cross-bill certain equities to which he was enitled.

Now, it is perfectly evident that down to this point appellant (Cable) had contented himselfwith informing the court with some particularity as to the preceding steps in the case, not because he was required to do so, for the statute expressly excused him from reciting in his ‘cross-bill any of the pleadings or proceedings in the case in which it’ was to be filed, (Starr & C. St. 408, § 31,) but because he intended, no doubt, some advantage would or might thereby accrue to him. But however intended, with respect to every issue arising under the pleadings and evidence, as the same stood on the last appeal to this court, as between the equities of Ellis and those claimed by Cable as the purchaser and assignee of Waugh, this court had solemnly adjudged priority to Ellis. Appellant (Cable) could not, under the guise of exhibits to his cross-bill, bring all the previous pleadings and evidence into the case as new matter, infuse life into dead issues by repetition, and thus require the court to reconsider and readjudicate questions it had previously passed upon.

Summarizing the averments of the cross-bill under which the new equities must arise, if at all, we have the charge that Ellis was negligent in not sooner setting up his verbal contract with Waugh; that he did not know of this verbal contract when he bought the Waugh notes and mortgage; that, before he did buy those notes of Waugh, this court had decided that the Waugh mortgage was a first lien; that he bought in good faith, and expended therefor a large sum of money; that Ellis ought not to have a first lien, because the amount due him...