Free v. Successful Merch.

• Decision Date: 18 December 1930
• Docket Number: No. 19477.,19477.
• Citation: 342 Ill. 27,173 N.E. 753
• Parties: FREE v. SUCCESSFUL MERCHANT.
• Court: Illinois Supreme Court

342 Ill. 27

173 N.E. 753

FREE

v.SUCCESSFUL MERCHANT.

No. 19477.

Supreme Court of Illinois.

Dec. 18, 1930.

Error to First Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; Ira Ryner, Judge.

Suit by Joseph H. Free against the Successful Merchant and others. To review a judgment of the Appellate Court granting a motion to dismiss the appeal on the ground that the decree granting plaintiff an accounting was not final, the defendant named brings certiorari.

Judgment affirmed.

Cavender, Milchrist & Kaiser, of Chicago, for plaintiff in error.

M. V. Minahan, of Chicago, for defendant in error.

PARTLOW, C.

Defendant in error, Joseph H. Free, filed his bill for an accounting in the circuit court of Cook county against Charles Lane Bowes, the Successful Merchant, an Illinois corporation, and the General Millwork Company, a Maine corporation, to recover certain salaries and commissions alleged to be due him. The defendants filed a joint and several answer, in which they denied the right to recover. Prior to the hearing before the chancellor, it was stated that the only issue was to determine what were the terms of the contract between the parties, that the testimony should be limited to that question, and, if the court found that the bill was sufficient and defendant in error was entitled to an accounting, that question would be later considered. The only evidence offered was by defendant in error. The chancellor found that he was entitled to an accounting against the Successful Merchant, and a decree was entered accordingly. A joint and several appeal was prayed to the Appellate Court for the First District, but it was perfected only by the Successful Merchant. In the Appellate Court a motion was made to dismiss the appeal on the ground that the decree was interlocutory and not final, which motion was sustained, the appeal was dismissed, and the case comes to this court upon a writ of certiorari.

The only question before this court is whether the decree was final or interlocutory and whether the appeal was properly dismissed. A decree is final and appealable only where it terminates the litigation between all of the parties on the merits so that when it is affirmed the court below has only to proceed with its execution. A decree is final and appealable even though incidental matters may be reserved for consideration and it directs a reference to a master to state an account. Eich v. Czervonko, 330 Ill. 455, 161 N. E. 864;People v. Village of Niles Center, 306 Ill. 145, 137 N. E. 437;Peabody Coal Co. v. Industrial Com., 287 Ill. 407, 122 N. E. 843;Rosenthal v. Board of Education, 239 Ill. 29, 87 N. E. 878;Gray v. Ames, 220 Ill. 251, 77 N. E. 219,5 Ann. Cas. 174. In Barnes v. American Brake-Beam Co., 238 Ill. 582, 87 N. E. 291, it was held that a decree for an accounting which fixes the complainant's rights as to some of the defendants but reserves for final consideration the question of the liability of some other defendants is merely interlocutory and may be reversed on appeal from a final decree dismissing the bill as to some of the defendants whose rights had not been determined and as to one defendant against whom the first decree ran.

The bill in this case alleged that on June 13, 1921, Bowes represented himself to be the principal officer, person controlling, and the owner of said two corporations, which merely represented different branches of various enterprises then and there conducted by Bowes, and that he verbally agreed that Free should be employed as a salesman, salesmanager, and solicitor for Bowes personally and for said two corporations, as well as another department run by Bowes and known as the Architectural and Publicity...