Newberry v. Blatchford

• Decision Date: 31 March 1883
• Citation: 1883 WL 10252,106 Ill. 584
• Parties: HENRY W. NEWBERRY et al.v.ELIPHALET W. BLATCHFORD et al.
• Court: Illinois Supreme Court

106 Ill. 584

1883 WL 10252 (Ill.)

HENRY W. NEWBERRY et al.

v.ELIPHALET W. BLATCHFORD et al.

Supreme Court of Illinois.

Filed at Ottawa Sept. 27, 1882.Rehearing denied March Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. MURRAY F. TULEY, Judge, presiding.

Mr. WIRT DEXTER, Messrs. MCCAGG, CULVER & BUTLER, Messrs. LAWRENCE, CAMPBELL & LAWRENCE, and Mr. JAMES MCCARTNEY, Attorney General, for the appellants:

An appeal lies to this court directly, because a freehold is involved in the litigation, and also because the State is a party. Carter v. Penn, 99 Ill. 390; Laws of 1879, sec. 88, p. 222.

The defence of res judicata must be set up by plea or answer, and can not be raised by demurrer to the bill. Chicago, Burlington and Quincy R. R. Co. v. Lee, 87 Ill. 461.

To make a matter res judicata there must be an identity of subject matter and of the cause of action, of the persons and parties, and in the quality of the persons for or against whom the claim has been made. Freeman on Judgments, sec. 252; Bouvier's Law Dic. 465; Miller v. McMannis, 57 Ill. 156.

As to the rule stare decisis, and its use and proper application, counsel cited and quoted largely from Headen v. Rust, 39 Ill. 192; Bowers v. Green, 1 Scam. 19; Matlett v. Butcher, 41 Ill. 383; Butler v. Van Weickle, 4 Hill, 461; Pratt v. Brown, 3 Wis. 609; Towle v. Furnie, 15 N. Y. 425; Leavitt v. Blatchford, 17 Id. 533; Leavitt v. Mariatt, 6 Ohio, 78; Williams v. Gibbes et al. 17 How. 257; Woolsey v. Judel, 4 Duer, 490; Shields v. Perkins, 2 Bibb, 231; In re South Durham Co., Smith's case, Law Rep. 11, Ch. Div. 579; Frink et al. v. Darst, 14 Ill. 304; Gwin et al. v. McCarroll, 1 S. & M. 371; San Francisco v. Spring Valley Water Works, 48 Cal. 493; Callendar's Admr. v. Keystone Mutual Life Ins. Co. 23 Pa. St. 471.

This court has held that upon a second appeal it would not reëxamine questions settled upon the first appeal, and would consider only such errors as were assigned upon that portion of the record since the first appeal. Hollowbush v. McConnel, 12 Ill. 204; Ellston v. Kennicott, 52 Id. 274; Cook v. Norton, 61 Id. 285; Reed v. West, 70 Id. 479; Kingsbury v. Buckner, Id. 514; Rising v. Carr, Id. 596; Chicago and Alton R. R. Co. v. The People, 72 Id. 82; Tuttle v. Garnett, 74 Id. 444; Hough v. Harvey, 84 Id. 309; Smith v. Brittenham, 94 Id. 624. But there must be identity of the parties, of the issues, and of evidence, as there was in all the cases cited.

That the Attorney General is a proper and necessary party to every suit which may affect a public charity, is well settled by the authorities. Story's Equity Pleading, sec. 222; Tudor on Charitable Uses, 161; Parker v. May, 5 Cush. 336; Jackson v. Phillips, 14 Allen, 579; Society v. Society, 55 N. H. 463; Chamberlain v. Stearns, 111 Mass. 267; Well Beloved, etc. v. Jones, 1 Sim. & Stu. 40; Cook v. Duckenfield, 2 Atk. 563; Rev. Stat. 1874, chap. 14, p. 163; Going v. Emery, 16 Pick. 119; Harvard College v. Society for Promoting Theological Education, 3 Gray, 280; Attorney General v. Dublin, 38 N. H. 459; Heuser et al. v. Harris, 42 Ill. 431.

The decision rendered upon the former hearing, in the absence of the Attorney General, could not bind him, and therefore was not conclusive upon any of the parties to the suit. Scott v. Bennett, 1 Gilm. 646; Lietze v. Clabaugh, 59 Ill. 136; Deniston v. Hoagland, 67 Id. 265; Ridgeway v. Underwood, Id. 421; McCall v. Lesher, 2 Gilm. 48. Messrs. ISHAM & LINCOLN, for the appellees:

A second appeal brings before this court only the proceedings subsequent to the mandate, and does not authorize an inquiry into the merits of the original decree. The only question is, did the lower court err in carrying into effect the mandate sent down by this court. Brown v. McArthur, 7 Wheat. 78; Corning v. Troy Factory, 15 How. 466; Hough v. Harvey, 84 Ill. 310; Hollowbush v. McConnel, 12 Ill. 203; Washington Bridge v. Stewart, 3 How. 413; Kingsbury v. Buckner, 70 Ill. 515; Southard v. Russell, 16 How. 547; Roberts v. Cooper, 20 Id. 467; Diversey v. Johnson, 93 Ill. 547; Clayes v. White, 83 Id. 540.

The construction of the will having been adjudicated against the complainants, the court below should have dismissed the bill. Wadhams v. Gay, 83 Ill. 250; Boggs v. Willard, 70 Id. 315; Puterbaugh v. Elliott et al. 22 Id. 158; Watkins v. Bliss, 2 Dickens, 701.

Messrs. BOUTELL & WATERMAN, also for the appellees:

That the Attorney General was not a necessary party merely because a legacy is given to a public charity, see Mitford & Tyler's Equity Pleading, 20; Chitty v. Parker, 4 Brown, C. C. 38; 1 Daniell's Chancery Pr. 138; Attorney General v. Warner, 2 Swanst. 291; Morrill v. Lawson, 4 Viner, 501.

The cross-bill filed by the Attorney General makes substantially the same case presented in the original bill, which has been decided.

Mr. CHIEF JUSTICE SCOTT delivered the opinion of the Court:

The question whether this court has jurisdiction in the first instance to hear the appeal in this case has been fully considered. A majority of the court are of opinion a freehold is involved in the case, and therefore the appeal lies directly from the circuit court to this court. In that conclusion the writer does not concur, being of opinion the case is one involving only the construction of a will, and that no freehold is involved. No discussion of either position taken will be attempted. It is deemed sufficient to state the conclusion reached by the majority of the court after mature consideration.

This case now comes before this court on a second appeal. The substance of the original bill, and the questions of law there determined concerning the matters in contention, are fully stated in the opinion of the court then delivered. ( Blatchford v. Newberry, 99 Ill. 11.) Reference is made to that case for a statement of the facts necessary to an understanding of the questions of law discussed. As there stated, it is a case involving the construction of a will, and the clause construed has relation to the time of the division and distribution of the estate of Walter L. Newberry, deceased. It was determined it was the plain purpose of the testator, as expressed in his will, no division or distribution of his estate should be made until after the termination of the three lives mentioned, and only at a time after the whole estate should have fallen into the trustees, under his will, disincumbered of all further uses for the daughters of the testator, or his widow. The conclusion, reached after mature consideration, was, that by a correct reading of that paragraph of the will the period for the division and distribution of the testator's estate had not arrived, and would not arrive until the death of his widow, who had survived both of his daughters, and was still living. The circuit court had construed the will differently, and decreed a division and distribution of the estate, and on account of that error its decree was reversed, and the cause remanded for further “proceedings in conformity” with the opinion of this court. On a petition filed for that purpose, conforming to the rules of this court in such matters, a rehearing was allowed, and the cause placed back on the docket for re-argument. But after another full and exhaustive discussion of the questions presented by the record, a majority of the court adhered to the conclusion reached on the former hearing, and caused the opinion then delivered to be refiled, as containing a full expression of the views entertained by a majority of the court.

On the remittitur from this court being filed, had the circuit court conformed to the practice, as stated by this court in Wadhams v. Gay, 83 Ill. 250, and had it proceeded in conformity with the opinion of this court, as it was directed to do, it would seem nothing remained for it to do but to dismiss the bill. What other proceeding would conform to the opinion of this court in that behalf? The construction there given to the will, holding the period of distribution had not yet arrived, was a final decision of the case on its merits, and it is not perceived under what authority any amendment could thereafter be made to the bill. But this branch of the case will be further remarked upon as the discussion goes on.

After the mandate of this court was filed in the circuit court, complainants obtained leave from the court to amend their bill, which was done. There is some difficulty in ascertaining what new matter was introduced into the bill other than making the Attorney General of the State a defendant, for the reason the amended bill took the form of a restatement of the entire case. Giving to the amended bill a careful consideration, it is not discovered any new matter is introduced other than stating more fully facts concerning the personal history of the testator, and the situation and character of his property, which it was thought might aid in ascertaining the true interpretation of that clause of the will the court was asked to construe. What are called new facts, alleged in the amended bill, throw no light on the principal question involved, viz., the construction of the will. Notwithstanding the amendment to the bill, it is in all material respects the same record that was before the court on a former appeal. A restatement of his case by a complainant, after the merits of the controversy have been determined against him by a court of last resort, although his amended bill might contain some new matter that would not have been impertinent in his original bill, will not give a party any such standing in court as would enable him to demand another adjudication of his cause on a second appeal. That would enable a party to experiment with the court, and would certainly introduce a most pernicious practice, not heretofore tolerated in this State.

It will be noticed, on inspection, that both the original and amended bills present only that clause of the testator's will relating...