Foote v. Yarlott

• Decision Date: 03 February 1909
• Citation: 87 N.E. 62,238 Ill. 54
• Parties: FOOTE v. YARLOTT et al.
• Court: Illinois Supreme Court

238 Ill. 54

87 N.E. 62

FOOTE

v.YARLOTT et al.

Supreme Court of Illinois.

Dec. 15, 1908.

Rehearing Denied Feb. 3, 1909.

Appeal from Superior Court, Cook County; Jesse Holdom, Judge.

Bill by Sara R. Foote against Mary Yarlott and others. Separate appeals by the parties from different decrees were consolidated. Reversed, and remanded with directions.

See, also, 234 Ill. 560, 85 N. E. 259.Henry W. Leman and Frank H. Culver, for Sara R. Foote.

Herman W. Stillman, for Nora Marggraf.

CARTWRIGHT, J.

On March 22, 1892, Mary Yarlott owned a lot in Chicago having a frontage of 40 feet, on which there was a three-story flat building of six flats, having its front and rear entrances in the center of the building, one-half of the doors, halls, and stairways being on either side of the center line, and with Edward L. Yarlott she executed notes and trust deeds, one on each half. She had applied for a loan of $10,000 upon the entire lot and building, but when the notes and trust deeds were executed two notes were given, for $5,000 each, at the request of the lender, and one was secured by a trust deed on the north half and the other by a trust deed on the south half. The note secured on the south half became the property of Sara R. Foote, and the note secured on the north half became the property of Nora Marggraf. About a year after the trust deeds were executed, the owner of the premises put in a steam-heating plant to furnish heat for the entire building. The plant for generating the steam heat was located on the north half of the lot, with pipes running therefrom to radiators throughout the whole building, and the plant was used to heat all of the six flats. The notes were due in five years, and, her loan having matured, Sara R. Foote extended the time of payment five years, and new interest notes were executed. Thereafter default was made in payments due, and she declared the whole amount due and filed her bill to foreclose the trust deed, alleging that the south half of the lot had an easement for the beneficial use of the heating plant constructed to heat the entire building, upon the owner of the south half paying a fair and reasonable proportion of the cost of maintaining the same. Nora Marggraf was made a defendant to the bill under a statement that she had, or claimed to have, some interest in the property, and she appeared and demurred to the bill. Her demurrer was sustained, but it was afterwards withdrawn on her motion, and the order sustaining it was set aside and she was given leave to file a plea. She filed her plea, alleging that before the filing of the bill she purchased the note secured on the north half of the lot, and that she had purchased said north half and was the owner of the same. The plea was followed by a disclaimer of any interest in the note secured on the south half, and a consent to the decree of foreclosure of the trust deed securing the same. The plea was set down for argument, and the court held it sufficient. No replication to the plea was filed, and the court dismissed the bill as to the defendant Nora Marggraf at the cost of the complainant. Other defendants answered, and the issues were referred to a master, who reported that the trust deed on the south half was a lien on the easements in the north half claimed by the bill. No objections were made or exceptions filed to the report, but the court expunged from the report the finding of the master as to the easements, and entered a decree of foreclosure not including any easement, and ordered a sale of the south 20 feet. From that decree Sara R. Foote appealed to the Appellate Court for the First District. Nora Marggraf appeared there and moved to dismiss the appeal for want of jurisdiction, on the ground that a freehold was involved. The motion was denied, and the subsequent history of the case is fully stated in Foote v. Marggraf, 233 Ill. 48, 84 N. E. 42, and Foote v. Yarlott, 234 Ill. 560, 85 N. E. 259.

The Appellate Court fell into error in entertaining the appeal of Sara R. Foote from a decree finding that she had no easement, and in rendering a judgment reversing the decree and remanding the cause to the superior court, with directions to enter a decree in accordance with the views of the Appellate Court on that subject. That judgment of the Appellate Court having been reversed by this court in Foote v. Marggraf, 233 Ill. 48, 84 N. E. 42, and the appeal transferred to this court, the decree entered by the superior court on July 1, 1907, must be reversed. The appeal from that decree is docketed here as No. 6,086, and the decree was not the result of any finding by the superior court, but was entered under a mandate of the Appellate Court awarded without jurisdiction. The merits of the case are to be settled in the appeal of Sara R. Foote from the original decree of foreclosure transferred from the Appellate Court to this court and docketed as No. 6,085, in which the substantial and controverted question is the existence of the alleged easement.

It is argued by counsel for Nora Marggraf that the question cannot be considered, for the reason that when her plea was sustained and the bill was dismissed as to her she was no longer before the court or within its jurisdiction; that the order was a final adjudication as to her, and if Sara R. Foote desired to have the order reviewed she should have appealed from it. The order was interlocutory and not appealable, since there can be no appeal until there has been a complete disposition of a cause as to all parties, except where great hardship or a denial of justice will result from not allowing an appeal. This case does not come within that exception, and there could be no appeal until the final decree, when the whole record, including the order of dismissal, might be brought up for review. Dreyer v. Goldy, 171 Ill. 434, 49 N. E. 560;Pain v. Kinney, 175 Ill. 264, 51 N. E. 621;Brodhead v. Minges, 198 Ill. 513, 64 N. E. 998. The only case cited by counsel in support of his position having any relation to the question is Guyer v. Wilson, 139 Ill. 392, 28 N. E. 738. In that case there was a hearing and a final decree disposing of the case on its merits, granting relief against some defendants and dismissing the bill as to others. The cause was referred to a special master to take proof as to the amount of the complainant's deficit upon the policies issued for his benefit and certain other amounts in the nature of an accounting, and when the report was made a decree was entered which again dismissed the bill as to the same parties. In that case the first decree disposed of the rights of the parties, and it was final and appealable, and it was, of course, held that the second decree added nothing to it. The question in this case whether the court erred in dismissing the bill as to Nora Marggraf is brought up with the appeal from the final decree, and her counsel says that there was no error because the bill was multifarious in seeking to establish an easement and also to foreclose the trust deed. The demurreralleged that the bill was multifarious, but the demurrer was withdrawn and a plea was filed which...