City of Chicago v. Gregsten

• Decision Date: 15 May 1895
• Parties: CITY OF CHICAGO v. GREGSTEN et al.
• Court: Illinois Supreme Court

157 Ill. 160

45 N.E. 505

CITY OF CHICAGO

v.GREGSTEN et al.¹

Supreme Court of Illinois.

May 15, 1895.

Appeal from appellate court, First district.

Bill for injunction filed by Samuel Gregsten and another against the city of Chicago. An order entering a decree for complainants having been affirmed by the appellate court (57 Ill. App. 94), defendant appeals. Affirmed.Condee & Rose, for appellant.

Knight & Brown, for appellees.

September 29, 1890, the appellees Samuel Gregsten and Andrew Cummings filed a bill of complaint in this cause, praying that the city of Chicago and the commissioner of public works be restrained from ejecting them from the vault or space underneath the alley in the rear of the premises occupied by said appellees, fronting on Dearborn street, Chicago. The bill of complaint was afterwards amended by leave of court. Preliminary injunction was granted, as prayed in said bill. On October 21, 1890, the city of Chicago filed its answer to the bill of complaint, and on January 9, 1891, moved the cort for dissolution of the injunction theretofore granted. The certificate of evidence signed and sealed by the court, and incorporated into the record, shows the following proceedings in the cause after the motion was entered to dissolve the injunction: ‘Be it remembered and certified that, the above-entitled cause coming on to be heard on motion of defendant to dissolve injunction, it was agreed and stipulated between parties that said cause should immediately be set down for hearing upon the bill, and the answer thereto, and the amendment to said bill, and the answer to stand as an answer to said amendment, and the replication to said answer, and also as well as the affidavits of Samuel Gregsten.’ In addition to the foregoing, the certificate of evidence shows that affidavits on the part of complainants were introduced in evidence, and also a certain bond executed by them to the city of Chicago; and, on the behalf of the defendant, affidavits of William R. Purdy and Adolph M. Hirsch were read in evidence. The record of the court also shows that the cause came on to be heard on the pleadings. On the hearing, the court found the issues for the defendant, and entered a decree dissolving the injunction, and dismissing the bill for want of equity, at the costs of the complainants. Upon appeal to the appellate court, the decree of the circuit court was affirmed. Thereupon an appeal was taken to this court; and, on a consideration of the cause, the decree of the circuit court was reversed, and the cause remanded ‘to the circuit court, for further proceedings not inconsistent’ with the opinion of the supreme court. 34 N. E. 426. A remanding order having been filed in the circuit court, appellees entered a motion for a final decree in their favor, in conformity to the opinion of this court, and the appellant entered a cross motion for leave to file a supplemental answer. The court allowed the motion of appellees, and denied the motion of appellant. A final decree having been entered, the appellant appealed to the appellate court, where the decree of the circuit court was affirmed, and this further appeal has been prosecuted.

CRAIG, J. (after stating the facts).

Under the facts as they appear from the foregoing statement, the only question presented by the record is whether the appellant, after the cause was remanded to the circuit court, was entitled to put in a new answer, and thus open up the cause for another hearing; or, was the court justified in entering a final decree in harmony with the opinion of this court? It will be observed that, when the cause was first submitted to the circuit court, the question determined was not merely that the injunction should be dissolved; but there was a hearing on the pleadings and affidavits, which were treated by the party as evidence, on the merits, and a decree entered dismissing the bill. When the case reached this court on appeal, it was here considered and decided on the merits, and every question involved was fully considered and decided, as shown by the opinion of the court. The order, therefore, reversing the decree of the circuit court and judgment...