Gage v. Bailey

• Decision Date: 13 November 1886
• Citation: 119 Ill. 539,9 N.E. 199
• Parties: GAGE v. BAILEY and others.
• Court: Illinois Supreme Court

119 Ill. 539

9 N.E. 199

GAGE

v.BAILEY and others.

Supreme Court of Illinois.

November 13, 1886.

Appeal from Cook.

Augustus N. Gage, for appellant.

Peckham & Brown and John P. Altgeld, for appellees.

CRAIG, J.

This was a bill brought by appellees against appellant, Portia Gage, to set aside a tax deed under which she claims title to the premises in dispute, and to vacate and remove appellant's title as a cloud upon the title of appellees. Appellant put in an answer to the bill, in which she set up that the various steps required to be taken by the revenue law, in order to constitute a valid sale of land for non-payment of taxes, had been complied with and fully observed, and that the title to the property had passed by the tax deed under which she claimed. To the answer a replication was filed, and on the hearing, upon the pleadings and evidence, a decree was rendered substantially as prayed for in the bill. The defendant prosecuted an appeal, and at the March term, 1882, of this court, the decree of the circuit court was reversed, and the case remanded. See Gage v. Bailey, 102 Ill. 11. In June, 1883, the order of this court was filed in the circuit court, and on the ninth day of July, 1883, the cause was redocketed. The complainants then, under leave of the court, filed an amended bill, in which they alleged that appellant's tax title was defective on account of certain errors in the school tax, which formed a part of the taxes for which the premises were sold. No order was taken requiring the defendant to answer the amended bill, and no answer was ever filed. Indeed, no steps seem to have been taken in the cause until March 18, 1886, when, on motion of appellees, the bill was dismissed, at complainant's costs. On the day this order was entered the appellant appeared in court, and entered her motion to vacate the order of dismissal. This motion was heard and overruled. The appellant then prayed an appeal, which was granted.

This appeal presents but one question, and that is whether the circuit court erred in allowing the complainants to dismiss their bill. Where no cross-bill has been filed, as a general rule, a complainant may dismiss his bill at any time he may desire, before a final decree has been entered in the cause. But we do not regard this as a case which will fall within the general rule referred to, or one to be governed by it. When the case was here before, several objections were urged against the validity of the tax sale under which appellant claimed title. These objections were taken up and considered by the court, and each and all were held to be without merit. The opinion of the court, after disposing of the objections to the tax title, concluded as follows: ‘The decree of the circuit court will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.’ The opinion had disposed of the whole case made by the pleadings and the evidence, and, when the remanding order should be filed in the circuit court, it would seem that nothing remained for the circuit court to do except to enter an order dismissing the bill. No other order or proceeding would be consistent with the opinion filed. If the order had been merely reversing and remanding, without any directions, doubtless the court might allow amendments to the pleadings, and might permit the introduction of other evidence;...