Gage v. Rohrbach
| Decision Date | 30 September 1870 |
| Citation | 1870 WL 6514,56 Ill. 262 |
| Parties | ASAHEL GAGEv.ULRICH ROHRBACH. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Superior Court of Chicago.
The opinion states the case.
Mr. EDWARD ROBY, for the plaintiff in error.
Messrs. ROSENTHAL & PENCE, for the defendant in error.
It appears that defendant in error was the owner of the premises in question, and was in possession when he filed his bill in this case. He had purchased the property of one Mayer, in April, 1869. But on the 28th day of October previously a special assessment for paving Canal street, in Chicago, had been assessed against the lot, and a judgment had been rendered against the property for the amount of the assessment and costs. A precept had been issued, and on the 17th day of March, 1869, Mayer paid the amount of the judgment and costs to the collector of the city, who gave the credit to an adjoining lot instead of the lot in question. On the 20th of March, 1869, the collector sold the premises, under the precept, to plaintiff in error, notwithstanding the judgment for the amount of the assessment had been paid. Plaintiff in error at the time received a certificate of purchase therefor, and refused to surrender or cancel the same, unless defendant in error would pay him the redemption money, which would have amounted to about $1,000 in addition to the $500 which he had already paid to release the property from the assessment.
Defendant in error thereupon filed a bill to have the sale canceled and to have the amount paid to satisfy the judgment for the assessment credited upon and in satisfaction of the assessment, and to enjoin plaintiff in error from transferring the certificate of purchase, and the city from issuing a deed to the premises. Plaintiff in error filed a demurrer to the bill, which the court overruled, and from that decision an appeal was prayed and granted. The city filed an answer, and Proudfoot, as guardian ad litem, filed an answer for the minor defendants, and Mayer was defaulted. Heald, Eichner and Becker also answered. A rule was taken on plaintiff in error for an answer, but failing to comply with the rule, a default was entered against him. All of these proceedings were had after the demurrer by plaintiff in error was overruled. The court, at a subsequent term, heard the case on bill, answers, replications, pro confesso orders and proofs, and granted the relief sought. The record is filed in this court, and errors assigned by plaintiff in error.
It is first urged that the court below erred in proceeding with the case after overruling the demurrer of plaintiff in error; that the demurrer went to the merits of the case, and, the court deciding the bill to be sufficient to authorize the relief, further steps should have been arrested, and that a hearing could not be had after the appeal was granted.
In this case the appeal was wrongfully allowed, as there was no final decree from which to appeal. The effort to do so was a nullity and was not binding on the court or on the other parties to the suit. The appeal staid no decree, because none had been rendered. If it could have any possible effect it was only to stay the execution of the order overruling the demurrer and preventing the court from rendering a decree on the demurrer. And this seems to have been the view taken by the court, inasmuch as plaintiff in error was subsequently ruled to answer, and was defaulted for a non-compliance with the rule. But, there being nothing to appeal from, the filing of the bond or the granting of the appeal was an inoperative and idle ceremony, having no effect upon the case.
After overruling the demurrer, the court, without any further steps against plaintiff, unless he had asked and obtained leave to answer, had the undoubted right to decree the relief against plaintiff in error, on the demurrer, which admitted the truth of the allegations of the bill, and the court might then have rendered a final decree granting relief against him. But there being other defendants, some of whom had answered, some had demurred, and others having taken no steps, the usual practice justified the court in reserving the decree on the demurrer until there was a final hearing and disposition of the case. As plaintiff in error abided by his demurrer, he could not, by praying an appeal and filing his bond, prevent the court from rendering a...
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