Gage v. Eddy

• Citation: 57 N.E. 1030,186 Ill. 432
• Parties: GAGE v. EDDY.
• Decision Date: 21 June 1900
• Court: Illinois Supreme Court

186 Ill. 432

57 N.E. 1030

GAGE

v.EDDY.¹

Supreme Court of Illinois.

June 21, 1900.

Appeal from superior court, Cook county; Philip Stein, Judge.

Suit by Clara E. Eddy against Henry H. Gage to quiet title and cross petition by defendant. From a decree dismissing the cross petition on the merits and the original petition for want of prosecution, defendant appeals. Affirmed.Edward Roby and Charles M. Hardy, for appellant.

C. S. Darrow, H. S. Mecartney, and Morris St. P. Thomas, for appellee.

October 29, 1891, one William H. Eddy filed a petition in the superior court of Cook county, under the provisions of the burnt records act, for a decree confirming and establishing title in him to a certain tract of land described as the S. 20 acres of the N. 1/2 of the E. 1/2 of the N. W. 1/4 of section 28, township 38 N., range 14, in Cook county, excepting railroad right of way, ect. January 16, 1892, the appellant, Gage, one of the defendants to the said petition, filed an answer thereto, asserting said tract of land was in his actual possession, and that he was the owner of the fee-simple title thereto. On the same day the appellant filed a cross petition, claiming to be the owner of the said tract by title in fee simple (describing the tract differently, however, but including it, and perhaps about two acres of land, in addition), and prayed that a decree be entered establishing and confirming the title in him. The original petitioner, Eddy, filed a replication to the answer of Gage, and filed also an answer to the cross petition exhibited by Gage. October 17, 1892, Eddy, by leave of the court, filed an amended petition, to which Gage filed an answer, in which he adopted the answer first filed, and made further answer to the amended petition. It does not appear a replication was filed to this answer. The cause was continued from time to time, without further steps or order, until May 2, 1899, when an order was entered dismissing it for want of prosecution. On June 20, 1899, this order of dismissal was, on motion of appellant, set aside, and the cause reinstated; and it being suggested said William H. Eddy, the original petitioner, had departed this life, on motion the appellee, his sole heir at law, was substituted as petitioner. Appellee thereupon, by leave of the court, filed a supplemental answer to the cross petition of appellant, in which she represented to the court that on September 28, 1889 (about two years prior to the filing of the original petition herein), said William H. Eddy, deceased, instituted in the circuit court of Cook county an action in ejectment against the appellant to recover the title to the tract of land involved in the petition and cross petition; that said suit in ejectment was pending when said petition and cross petition were filed; that said William H. Eddy and the appellant voluntarily proceeded with the action of ejectment until the death of said Eddy, which occurred February 20, 1896; that appellee, being the sole heir of said Eddy, was substituted as plaintiff in said ejectment suit, and that the issues in ejectment between her and said appellant were voluntarily litigaged and submitted to juries for trial on two separate occasions; that she prevailed and obtained a judgment in said circuit court in ejectment establishing title in fee in her to said tract of land; and that said judgment was affirmed by the supreme court. 53 N. E. 1008. Appellant filed a general replication to this supplemental answer to his cross petition. The cause being called for disposition, appellee, by her solicitors, stated in open court that she did not desire or intend to offer evidence in support of her petition, and did not desire any relief under the prayer thereof, but moved the court, in the alternative, to dismiss the original petition without prejudice, at her cost, or to dismiss the same for want of prosecution. The court did not rule on the motion. The appellee did not offer any evidence in support of the original petition, and appellant proceeded to introduce his proof in support of his cross petition. The court inquired whether there was a controversy between the parties relative to the alleged verdict and judgment in favor of the appellee in the action of ejectment and the affirmance of such judgment by the supreme court. Counsel for appellant replied: ‘My impression is that there will not be any controversy, but we think it can hardly come in until after Mr. Gage has made his proof.’ The following colloquy then occurred between the court and counsel for appellant: ‘The Court: That is very likely; but the court would like to be advised by counsel what issues there are likely to be tried in this case with that verdict and judgment in the ejectment suit affirmed by the supreme court. Mr. Roby: I think that what is left to be tried will resolve itself into two propositions. One will be whether-the party having come into equity and this court having jurisdiction of the matter-whether the judgment in ejectment will bind this court, so that this evidence which we shall put in will not entitle the cross complainant to a judgment of this court establishing his title. That is one head. The other head is this: that the cross complainant having purchased this land,-not only the patent title, but also these tax titles,-and having paid out a large amount of money in taxes, and these cases having gone pari passu, the complainant in this and the plaintiff in the ejectment case having prosecuted both cases, the plaintiff having come into this court to obtain such relief as a court of law could not give, and having then got the benefit of a judgment at law without doing equity, whether he can actually get a good title to the land, and leave Gage, without paying the taxes that a court of equity would require that he should pay. These are the two questions.’ The testimony in behalf of appellant was then introduced, whereupon appellee produced documentary evidence in support of the allegations of her amended answer to appellant's cross petition, that the title to the land had been adjudicated in said action of ejectment. The court found the issues under the cross petition adversely to appellant, and entered a final decree dismissing the cross petition on the merits so far as the premises claimed in the original petition were concerned, and without prejudice otherwise, and dismissing the original petition for want of prosecution. The appellant by this appeal seeks reversal of the decree.

BOGGS, C. J. (after stating the facts).

Did the chancellor err in decreeing the cross petition of appellant should be dismissed? The adjudication in the action of ejectment did not, it is suggested, extend to all the lands embraced in the cross petition. The discrepancy,if any, in this respect grew out of the fact the petition and the judgments in ejectment describe the property as the south 20 acres of a government subdivision, while the cross petition described the south half of the same subdivision, and it is contended the subdivision of the section contained more than 40 acres. The decree dismissed the cross petition without prejudice as to the land, if any, not embraced in the description in the judgment in ejectment. This action was proper, for the reason that notice of the pendency of the cross petition was not published, as is required by section 12 of the burnt records act. Such notice was not essential so far as the land embraced in the original petition was concerned, but should have been given in order to invest the court with jurisdiction to adjudicate the title to other lands. It was not error to dismiss the cross petition on a hearing as to the land described in the original petition.

The ejectment suit was pending when the petition and...