Smith v. Condo, 35590

• Decision Date: 31 March 1960
• Docket Number: No. 35590,35590
• Citation: 166 N.E.2d 9,19 Ill.2d 228
• Parties: Ray SMITH, Ex'r, Appellant, v. Ralph CONDO et al., Appellees.
• Court: Illinois Supreme Court

Page 9

166 N.E.2d 9

19 Ill.2d 228

Ray SMITH, Ex'r, Appellant, v. Ralph CONDO et al., Appellees.

No. 35590.

Supreme Court of Illinois.

March 31, 1960.

Elmer Jenkins, Benton, for appellant.

John Lannin, and Orwin H. Pugh, Carbondale, for appellees.

SCHAEFER, Justice.

During his lifetime George H. Biggs conveyed certain property to Grace Condo and Ralph Condo, her husband, in consideration for their promise to move into his home and care for him during the remainder of his life. After the death of George H. Biggs, his executor, Ray Smith, filed a petition to sell real estate, including the property so conveyed. The petition alleged that the Condos had breached the agreement, but had refused to reconvey to the decedent, and alleged that the conveyance to them is a cloud upon the title to the property. The Condos moved to strike the allegations of the petition which concerned them, on the ground that those 'matters and things were personal to George H. Biggs and cannot be raised by Petitioner herein, as his personal representative.' The motion was allowed and an order was entered striking the allegations. Thereafter the executor moved to vacate the order and for leave to file an amendment to the petition. An order was entered striking the motion to vacate and denying leave to amend.

The trial court certified the finality of the order striking the allegations of the petition to sell real estate, and the executor appealed from both orders to the Appellate Court for the Fourth District. That court ordered the cause transferred to this court, apparently on the ground that a freehold was involved. For reasons that will be stated, we have concluded that a freehold is not involved upon this appeal, and that the case must be retransferred to the Appellate Court. Cf. City of Edwardsville v Central Union Telephone Co., 302 Ill. 362, 134 N.E. 716; Hockett v. Logan, 257 Ill. 326, 100 N.E. 978.

The jurisdictional point is a narrow one, but it is well settled. Even though a freehold was involved in the issues before the trial court, this court has no jurisdiction upon direct appeal unless a freehold is involved in the question to be determined on review. Liberty National Bank of Chicago v. McCreary, 8 Ill.2d 250, 133 N.E.2d 14; McCarthy v. McCarthy, 6 Ill.2d 52, 126 N.E.2d 633; Dombroski v. Vallely, 409 Ill. 596, 101 N.E.2d 101; Frerichs v. Foreman, 407 Ill. 507, 95 N.E.2d 452; Lakin v. Wood, 406 Ill. 595, 94 N.E.2d 872.

The executor stated in his brief in ...