Oswold v. Wolf
| Decision Date | 15 November 1888 |
| Citation | 19 N.E. 28,126 Ill. 542 |
| Parties | OSWOLD v. WOLF. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from appellate court, First district.
Bill by Peter Wolf against Joseph Oswold. Defendant appeals.
Perry A. Hull, for appellant.
Elmer W. Adkinson, for appellee.
This was a bill in chancery filed by appellee, Wolf, against appellant in the superior court of Cook county. The bill alleges, in substance, that in December, 1855, one Peter Duffy, being the owner in fee of a certain tract of land in Cook county lying on the west side of and adjoining Halstead street, containing 10 acres, conveyed to the complainant the west one-third of said tract, and also at the same time, and by the same deed, conveyed to the complainant the right of way over a strip of land 14 feet in width, (particularly describing it,) and running from said west one-third of said tract east through the center of the remaining two-thirds of said tract to Halstead street; that the complainant, in pursuance of said conveyance, entered into possession of said west one-third of said tract, and has ever since continued in possession thereof; that the defendant afterwards became possessed of the remaining two-thirds of said tract, subject to the complainant's right of way over the same, and has recently erected obstructions upon said right of way so as to render it impossible for complainant to use the same. The bill prays that the defendant be decreed to remove all obstructions from said right of way, and permit the complainant and those claiming under him an unobstructed passage over the same, and to forever maintain said right of way in condition to be used by the complainant and those claiming under him, and a general prayer for relief. The defendant, by his answer, among other things denied and put in issue the complainant's title to said right of way, and setting up title and exclusive right of possession in himself to the strip of land upon which the same is claimed to be located. The cause coming on to be heard on pleadings and proofs, the court rendered a decree establishing said right of way in the complainant, and perpetually restraining the defendant from obstructing the same, and from hindering and impeding the uninterrupted use of the same by the complainant, his agents, servants, or assigns, and also requiring the defendant, by a certain day, to remove the obstacles from said right of way, in such manner as to enable the complainant to use and enjoy the same. On appeal by the defendant to the appellate court, an order was entered by that court ‘that said appeal be dismissed out of this court for want of jurisdiction,’ and for costs. This appeal is prosecuted from that order.
The cause having been certified to this court as involving questions of law of such importance as that it should be passed upon by the supreme court, two questions only remain for our consideration. It is manifest from an inspection of the record that the sole ground for the entry of the order dismissing the appeal in the appellate court was that a freehold was involved, and that court was therefore without jurisdiction. By the eighth section of the act to establish appellate courts, amended June 6, 1887, (Sess. Laws 1887, p. 156,) it is provided in what cases appeals to, or writs of error from, the appellate courts can be prosecuted, and cases involving a freehold are expressly excluded; while by that section of the statute, and the eighty-eighth section of the practice act, as amended June 3, 1879, it is provided that appeals from, and writs of error to, trial courts, in all cases in which a freehold is involved, shall be taken directly to the supreme court. If, therefore, a freehold was involved in the determination of the errors assigned upon the record, the appeal to the appellate court could confer no jurisdiction upon that court, and its order was properly entered.
The question first for consideration is, what does this appeal bring to this court for its determination? It is contended that ‘if this court should hold that a freehold is involved, then the case is properly before this court for determination on all the question of law and fact involved.’ The point sharply made is that the order of the appellate court dismissing the appeal left nothing to be done but to carry into effect the judgment of the court below, and that therefore the judgment of the appellate court was final, and an appeal upon the merits allowed by the statute. The statute referred to (section 90, c. 110, Rev. St.) is as follows: ‘In all criminal cases, and in all cases where a franchise, or a freehold, or the validity of a statute is involved, and in all other cases where the sum or value in the controversy shall exceed one thousand dollars, ($1,000,) exclusive of costs, which shall be heard in any of the appellate courts upon errors assigned, if the judgment of the appellate court be that the order, judgment, or decree of the court below be affirmed, or if final judgment or decree be rendered therein in the appellate court, or if the judgment, order, or decree of the appellate court be such that no further proceedings can be had in the court below, except to carry into effect the mandate of the appellate court, any party to such cause shall be permitted to remove the same to the supreme court by appeal or writ of error,’ etc. The contention of counsel is predicated upon the last clause of the section, as quoted, providing for appeals and writs of error where the order of the appellate court as such that no further proceedings can be had in the court below, except to carry into effect the mandate of the appellate court. It is apparent that no mandate issued, or if that court was without jurisdiction could issue, from the appellate court to the court below. Any attempt to make such an order, thereby transcending the limit of its jurisdiction, would be void. Kenney v. Greer, 13 Ill. 432. Nor was the order entered by the appellate court a final order in the cause, or made in a case ‘heard in the appellate court upon errors assigned,’ within the contemplation of the statute. What that court did, was, by its order, to refuse to entertain the appeal for any purpose, or to make any order in the cause, final or otherwise. This court, exercising its appellate jurisdiction, sits in cases of appeals to review the final orders, judgments, and decrees of the tribunals from which the appeal is prosecuted, upon the record there made, and we have repeatedly held that nothing can be considered on appeal that was not properly presented for adjudication in the lower court,-that nothing was brought up by the appeal...
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