Hux v. Raben
| Decision Date | 29 September 1967 |
| Docket Number | No. 40257,40257 |
| Citation | 38 Ill.2d 223,230 N.E.2d 831 |
| Parties | John D. HUX et al., Appellants, v. Denis RABEN et al., Appellees. |
| Court | Illinois Supreme Court |
Frank Bonan, McLeansboro (Robert S. Hill, Benton, of counsel), for appellants.
Boswell & Boswell, Harrisburg (Archie Bob Henderson, Harrisburg, of counsel), for appellees.
In this action for specific performance of an option contract for the sale of 440 acres of land, the circuit court of Hamilton County entered a decree directing the defendants, Denis Raben and Louella Raben, his wife, to execute a deed conveying the property in question to the plaintiffs, John D. Hux and Olga M. Hux, his wife, who are remote assignees of the option contract. The defendants appealed, and the Appellate Court for the Fifth District reversed. (74 Ill.App.2d 214, 219 N.E.2d 770.) We granted leave to appeal.
The decree of specific performance modified the provisions of the option contract. The appellate court reversed that decree upon the ground that the contract itself was not sufficiently definite and certain to support a decree of specific performance, particularly with reference to the terms of a second mortgage to be delivered to the vendor.
In this court the purchasers contend that the appellate court was without jurisdiction to decide the case on that ground, because it had not been raised by the parties. The contention is broadly stated: 'A court of appeal lacks power and jurisdiction to raise defenses of its own motion and to decide them of its own motion.' No authority is cited in support of this proposition. Our examination of the briefs in the appellate court satifies us that the adequacy of the contract to support a decree of specific performance was challenged in that court. The purchasers do not now argue that the contract was sufficiently definite. The judgment of the appellate court must therefore be affirmed.
A further word is appropriate, however, in view of the sweeping character of the attack on the judgment of the appellate court. The last sentence of Rule 341(e)(7), of the rules of this court, Ill.Rev.Stat.1967, c. 110A, § 341(e)(7) (36 Ill.2d 138), 'Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing', states an admonition to the parties, not a limitation upon the jurisdiction of the reviewing court. The distinction clearly appears when that sentence is read in conjunction with Rule 366, which deals with the powers of a reviewing court and the scope of review. Rule 366 provides: (36 Ill.2d 159.) A similar thought is expressed in the provision of Rule 615 with respect to...
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...the jurisdiction of this court" (People v. Normand, 215 Ill.2d 539, 544, 294 Ill.Dec. 637, 831 N.E.2d 587 (2005); Hux v. Raben, 38 Ill.2d 223, 224-25, 230 N.E.2d 831 (1967)), we choose to review defendants' arguments regarding the lack of particularity and the overbreadth of the warrant on ......
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...Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill.2d 240, 251, 198 Ill.Dec. 786, 633 N.E.2d 627 (1994), quoting Hux v. Raben, 38 Ill.2d 223, 225, 230 N.E.2d 831 (1967). Because the appellate court addressed the constitutional question pursuant to a supervisory order of this court direct......
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