Classen v. Ripley

Decision Date27 November 1950
Docket NumberNo. 31556,31556
Citation95 N.E.2d 454,407 Ill. 350
PartiesCLASSEN v. RIPLEY.
CourtIllinois Supreme Court

Russell H. Classen, of Belleville, for appellant.

Turner, Holder & Ackermann, of Belleville, for appellee.

GUNN, Justice.

Appellant, Lydia M. Classen, filed a complaint in the circuit court of St. Clair County to require appellee, Samuel M. Ripley, to specifically perform an alleged contract to sell certain real estate in that county. The complaint sets forth the alleged contract, consisting of a number of letters signed by an individual designated 'Uncle Sam,' alleged to be appellee, offering for a certain price certain land. It is claimed that the offer was accepted, although it is not specified whether such acceptance was oral or written, and that appellee never did convey, although it is alleged that money for the purchase price was tendered.

The complaint was filed January 12, 1949. February 21, 1949, the defendant appeared and made a motion to strike the complaint. March 7, 1949, the motion to strike was allowed and leave given the plaintiff to file an amended complaint. May 6, 1949, a motion to dismiss was presented to the court, and July 18, 1949, the motion to dismiss was allowed and the cause dismissed for want of equity. August 16, 1949, a motion to vacate and set aside the order of dismissal and to file an amended complaint was filed, which was taken under advisement by the court. February 3, 1950, the court entered an order: 'Now on this 3rd day of February A.D. 1950, it being one of the regular judicial days of this Court, plaintiff's motion to vacate or set aside decree or order or court entered July 18, 1949, presented and argued in open Court, * * * it is therefore ordered that the order entered on July 18, 1949, dismissing the complaint for want of equity shall stand and the motion to vacate or set aside said order is denied, and that the suit is hereby dismissed for want of equity and leave to file amended complaint denied.'

Notice of appeal was made and served February 23, 1950, the appeal being taken from the order and judgment of February 3, 1950, denying plaintiff's motion to vacate or set aside the decree of the court entered July 18, 1949, and prayed that: (1) The order of February 3, 1950, be reversed; (2) that the Supreme Court enter judgment on the pleadings and order the defendant to specifically perform; and, in the alternative, (3) that the cause be remanded to the circuit court with directions to order a trial on the issues, as set down in the amended complaint attached to the motion to vacate.

No appeal was taken from the original order of July 18, 1949, dismissing the cause for want of equity. The issue comes to this court solely upon the question of whether the court erred in refusing to vacate said order and allow an amended complaint to be filed. That precise question arose in Carney v. Quinn, 358 Ill. 446, 193 N.E. 455. In that case a will was admitted to probate in the probate court and there was an appeal to the circuit court, where an order was entered admitting the will to probate. Two days after the order probating the will had been entered in the circuit court a motion was filed to vacate such order, and upon denial of the motion the cause was appealed to the Supreme Court upon the theory that a freehold was involved. In that case we held that, although a freehold was involved under the original provision of the will, it was not before us in the proceedings, since the only question raised and argued was the propriety of the order of...

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8 cases
  • Mittelman v. Witous
    • United States
    • United States Appellate Court of Illinois
    • May 18, 1988
    ...as it terminated the litigation between the parties. See Sanford v. Thompson (1947), 397 Ill. 353, 74 N.E.2d 534; Classen v. Ripley (1950), 407 Ill. 350, 95 N.E.2d 454; Commonwealth Loan Co. v. Baker (1968), 40 Ill.2d 506, 240 N.E.2d 682; Johnson v. Empire Mutual Insurance Co. (1979), 70 Il......
  • Duncan v. National Tea Co.
    • United States
    • United States Appellate Court of Illinois
    • June 19, 1957
    ...the first, this is an appeal properly taken from either or both orders denying petitioners the right to intervene. Classen v. Ripley, 407 Ill. 350, 352, 95 N.E.2d 454; Id., 343 Ill.App. 298, 303, 98 N.E.2d This appeal presents only the question of the right of the petitioners to intervene i......
  • Jones v. Hodges, 32899
    • United States
    • Illinois Supreme Court
    • November 18, 1953
    ...but also in the questions to be determined upon review by this court. Dombroski v. Vallely, 409 Ill. 596, 101 N.E.2d 101; Classen v. Ripley, 407 Ill. 350, 95 N.E.2d 454; Kurzawski v. Malaga, 402 Ill. 207, 83 N.E.2d 557; Frey v. Schaab, 379 Ill. 315, 40 N.E.2d 509; Flanagan v. Wilson, 375 Il......
  • Simpson v. Simpson
    • United States
    • United States Appellate Court of Illinois
    • February 15, 1955
    ...been decided and disposed of by such decree.' The court in that case did not consider section 74 of the Practice Act. In Classen v. Ripley, 407 Ill. 350, 95 N.E.2d 454, also cited by the defendant, an order was entered on July 18, 1949 dismissing the complaint for want of equity. On Februar......
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