Ernst Tosetti Brewing Co. v. Koehler

• Decision Date: 16 December 1902
• Citation: 200 Ill. 369,65 N.E. 636
• Parties: ERNST TOSETTI BREWING CO. v. KOEHLER.
• Court: Illinois Supreme Court

200 Ill. 369

65 N.E. 636

ERNST TOSETTI BREWING CO.

v.KOEHLER.

Supreme Court of Illinois.

Dec. 16, 1902.

Appeal from appellate court, First district.

Action by Bertha Koehler against the Ernst Tosetti Brewing Company. From a judgment of the appellate court (101 Ill. App. 339) reversing a decree dismissing the bill, defendant appeals. Affirmed.

Cratty Bros., Jarvis & Latimer, for appellant.

Masterson, Haft & Dandridge, for appellee.

CARTWRIGHT, J.

On June 12, 1899, Bertha Koehler, appellee, filed her bill in the superior court of Cook county against the Ernst Tosetti Brewing Company, appellant, and Charles E. Polzin, to enjoin appellant from levying on a certain lot by virtue of an execution issued on a judgment in favor of appellant against said Charles E. Polzin, and to remove the cloud upon the title to said lot arising from the apparent lien of such judgment thereon. Appellant and Charles E. Polzin filed separate answers to the bill, to which replications were filed. The bill allegaed that the lot had been conveyed to John Bernero; and on May 28, 1901, one of the days of the May term of said court, an order was entered, on motion of appellee, giving her leave to amend the bill by making said John Bernero complainant. The amendment was filed instanter; joining said John Bernero with appellee as a complainant, and adding to the averments of the bill and to the prayer. It was ordered that the answers theretofore filed should stand as answers to the amended bill, and the replications should also stand to the answers. On the same day a final decree was entered in the cause, granting the relief prayed for by the amended bill. No further motion or order was made or entered in the cause at the May term. Afterward, at the June term, 1901, of said court, another decree was entered in the cause on June 11th, dismissing the bill at the cost of appellee for want of equity, and from this decree appellee prosecutedan appeal to the appellate court for the First district. The cause was heard in the branch of that court, and the decree so appealed from was reversed, without remanding the cause. From the judgment of the appellate court this appeal was prosecuted.

The judgment against Polzin together with costs and accrued interest, did not amount to $1,000 at the time the bill was filed, and appellee has entered a motion to dismiss the appeal on the ground that the amount involved is not sufficient to give this court jurisdiction. The purpose of the suit is not the recovery of money or property, but it is to enjoin the levy upon and sale of the lot under execution, and to remove the cloud from the title, and in such case the right to an appeal is not determined by the amount of the judgment. Baber v. Railroad Co., 93 Ill. 342;Bank v. Sperling, 113 Ill. 273;Green v. Goff, 153 Ill. 534, 39 N. E. 975. The motion to dismiss the appeal is overruled.

The record removed from the superior court to the appellate court showed that the superier court had decided the issues made by the pleadings, and entered a final and conclusive decree at the May term, and had thereby exhausted its power to adjudicate the rights of the parties. That decree was in full force and effect, and the court was without power to enter another decree of opposite character and effect at the succeeding June term. To obviate the necessary effect of the decree entered at the May term, appellant, during the pendency of the cause in the appellate court, obtained an order of the superior court purporting to strike from the files the amendment to the bill, and to vacate, set aside, and expunge from the records the decree entered at the May term, and filed in the appellate court an additional record showing such proceeding and order. This order was entered at the October term, 1901, of the superior court. The appellate court disregarded the order, as not being within the power of the superior court. It is insisted on this appeal that the appellate court erred in such holding, and that the superior court had power at the October term to set aside and vacate the decree entered at the May term. If the superior court did not have such power, it is manifest that the judgment of the appellate court was right.

The decree entered at the May term was signed by the chancellor, and delivered by him to the clerk, who regularly filed it. The order vacating it, entered at the October term, was made in pursuance of a motion of appellant, supported by affidavits of two of its solicitors, to the effect that the solicitor for appel...