Lansingh v. Dempster

• Decision Date: 02 October 1912
• Citation: 99 N.E. 354,255 Ill. 161
• Parties: LANSINGH et al. v. DEMPSTER et al.
• Court: Illinois Supreme Court

255 Ill. 161

99 N.E. 354

LANSINGH et al.

v.DEMPSTER et al.

Supreme Court of Illinois.

June 21, 1912.

Rehearing Denied Oct. 2, 1912.

Error to Appellate Court, First District, on Appeal from Circuit Court, Cook County; Lockwood Honore, Judge.

Suit by David S. Dempster against Killian V. R. Lansingh, prosecuted on the death of complainant by Sarah B. Dempster and others, executors. There was a decree for defendants, and, on filing the remanding order in the circuit court, the court ordered the cause reinstated, and, pending disposition, Killian V. R. Lansingh died, and his executors, V. R. Lansingh and others, moved that they be substituted to prosecute the cause for damages. From an order of the Appellate Court, affirming an order adjudging that the action abated on the death of complainant, the executors of Killian V. R. Lansingh, deceased, bring certiorari. Writ dismissed.

See, also, 150 Ill. App. 55.Robert F. Pettibone and William S. Freeman, both of Chicago, for plaintiffs in error.

Cannon & Poage and Ashcraft & Ashcraft, all of Chicago (E. M. Ashcraft, of Chicago, of counsel), for defendants in error.

DUNN, C. J.

David S. Dempster filed a bill in the circuit court of Cook county for the purpose of determining the ownership of 455 shares of the stock of the Rosehill Cemetery Company, which were held in the name of Killian V. R. Lansingh, and of compelling an accounting for and delivery of so much of such stock as should be found due the complainant. A preliminary injunction was obtained, enjoining Lansingh from selling, assigning, incumbering, transferring, or otherwise disposing of the stock or collecting the dividends on it. This injunction continued in force for 17 months, and was then dissolved on Lansingh's motion. Suggestions of damages were filed, and upon a hearing a decree was entered allowing damages against the complainant, from which he appealed. The complainant died pending the appeal, and his executors, the defendants in error, were substituted for him. The decree was reversed. 234 Ill. 381, 84 N. E. 1032. Upon filing the remanding order in the circuit court, Lansingh moved the reinstatement of the cause, and the defendants in error resisted the motion, on the ground that the cause of action did not survive against them as executors. The court ordered the cause reinstated, reserving the question of the survival of the claim for damages against the executors. Afterward Lansingh died, and the plaintiffs in error, his executors, suggested his death, and moved that they be substituted and allowed to prosecute the cause in his stead. The court overruled the motion, holding that the action abated on the death of David S. Dempster, and that no right of action survived, either against his estate or in favor of that of Lansingh, ordered that the proceeding for ascertaining damages on the suggestion of damages filed be removed from the docket and dismissed, and entered judgment of abatement. The Appellate Court having affirmed this order, the record of that court has been brought here by a writ of certiorari for review.

The only question in the circuit court or Appellate Court was that of the survival of the proceeding. The defendants in error have, however, made a motion here to dismiss the writ, which raises the question of the jurisdiction of this court, and which was reserved to the hearing.

[1] Section 121 of the Practice Act (Hurd's Rev. St. 1911, c. 110) provides that the judgments and decrees of the Appellate Courts shall be final in all cases except those in which the Constitution requires appeals to and writs of error from the Supreme Court to be allowed, and except, also, cases in which the Appellate Courts may grant certificates of importance and cases in which the Supreme Court may grant writs of certiorari. The cases in which writs of certiorari may be granted are defined as follows: ‘(2) In any such case as is hereinbefore made final in the said Appellate Courts, it shall be competent for the Supreme Court to require, by certiorari or otherwise, any such case to be certified to the Supreme Court for its review and determination with the same power and authority in the case, and with like effect, as if it had been carried by appeal or writ of error to the Supreme Court: Provided, however, that in actions ex contractu (exclusive of actions involving a penalty) and in all cases sounding in damages the judgment, exclusive of costs, shall be more than $1,000.’ The judgment merely found the case abated and struck it from the docket, and was therefore not more than $1,000. If the action was ex contractu, not involving a penalty, or sounded in damages, the case was not one in which the statute authorizes the writ of certiorari. La Monte v. Kent, 253 Ill. 230, 97 N. E. 387.

The plaintiffs in error insist that the proviso quoted has no reference to suits in equity, and they cite Chicago Auditorium Ass'n v. Fine Arts Building, 244 Ill. 532, 91 N. E. 665,18 Ann. Cas. 253,Thomas v. Thomas, 250 Ill. 354, 95 N. E. 345,35 L. R. A. (N. S.) 1158,Lesher v. Lesher, 250 Ill. 382, 95 N. E. 483,Justice v. Wilkins, 251 Ill. 13, 95 N. E. 1025, and Fox v. Simons, 251 Ill. 316, 96 N. E. 233, all but one being cases in equity in which the bills were dismissed and decrees were rendered in favor of the defendants, and in which writs of certiorari were issued. None of those cases, however, was of that character in which the right of appeal was dependent upon the amount of the judgment. In none of them was a money judgment sought, or could one have been rendered. The first was a bill to set aside a valuation of real estate for the purpose of fixing the amount of rent under a lease; the second, a cross-bill in a divorce suit seeking the custody of children; the third, a divorce suit; the fourth, an application for the appointment of an administrator; and the last, a bill to compel the assignment of certain oil and mineral leases. In such cases, it is true, the proviso has no application, because the nature of the case is such that no money judgment can be rendered, except sometimes as ancillary to the main relief sought. Under the statute the record of the Appellate Court may be required to be certified to the Supreme Court in any case, with the limitation that in any action ex contractu or sounding in damages there must be a judgment for more than $1,000. This limitation has been held to apply, whether the proceedings are at law or in equity, where the object of the suit is the recovery of money only, and no other independent relief is sought. It has been so held in cases of the foreclosure of mortgages (Akin v. Cassiday, 105 Ill. 22;Sedgwick v. Johnson, 107 Ill. 385;Jordan v. Moore, 128 Ill. 56, 21 N. E. 212;Hedley v. Geissler, 189 Ill. 172, 59 N. E. 580); mechanics' liens (Rimmer v. O'Brien-Green Co., 165 Ill. 31, 45 N. E. 979;Davis v. Upham, 191 Ill. 372, 61 N. E. 76); creditors' bills (Farwell v. Becker, 129 Ill. 261, 21 N. E. 792,6 L. R. A. 400, 16 Am. St. Rep. 267;Walker v. Malin & Co., 94 Ill. 596;Aultman & Taylor Co. v. Weir, 134 Ill. 137, 24 N. E. 771); reformation and collection of an insurance policy (Clinton County Ins. Co. v. Zeigler, 201 Ill. 371, 66 N. E. 222); separate maintenance (Umlauf v. Umlauf, 103 Ill. 651;Crittenden v. Crittenden, 138 Ill. 511, 28 N. E. 747); and accounting (Moore v. Williams, 132 Ill. 591, 24 N. E. 617).

The words, ‘in actions ex contractu * * * and in all cases sounding in damages,’ refer, not to the form of proceeding by which a cause of action may be enforced, but the nature...