Berry v. Lewis

187 N.E.2d 688, 27 Ill. 2d 61, 1963 Ill. LEXIS 592

• Court: Illinois Supreme Court
• Decided: February 1, 1963
• Docket: 37316
• Status: Published

Opinion

Mr. Justice Klingbiel

delivered the opinion of the court:

The purchasers at a partition sale of real estate described as lot 19, block 2, of a certain subdivision brought ejectment in the circuit court of St. Clair County to recover possession and damages for withholding it. Defendants filed a counterclaim alleging that an adjoining parcel (lot 18), which they also owned, was the one intended to be partitioned, and that the subject property was mistakenly designated as lot 19 throughout the partition proceedings. A trial was had, at the conclusion of which a decree was entered dismissing the complaint and granting relief upon the counterclaim. Upon-appeal this court found that the evidence was insufficient to support the decree. It was reversed and the cause was remanded “for further proceedings not inconsistent with this opinion.” Berry v. Lewis, 23 Ill.2d 380.

Thereafter the circuit court denied plaintiffs’ motion for judgment and a writ of possession. Instead it entered an order granting a motion by defendants for new trial on the counterclaim. We have allowed plaintiffs’ motion for leave to appeal therefrom.

The circuit court was clearly in error. After a judgment is reversed and the cause is remanded the inferior court can take only such further proceedings as conform to the judgment of the reviewing court. (People ex rel. Bauer v. Henry, 10 Ill.2d 324; Ptaszek v. Konczal, 10 Ill.2d 326.) When the court of appellate jurisdiction, in considering a case, determines the issues and decides the questions involved on their merits, reversing the judgment and remanding the cause with directions to proceed in conformity with the views expressed in the opinion, there is no power in the court below except to enter a final order or judgment without retrial. Nye v. Nye, 411 Ill. 408; In re Estate of Maher, 210 Ill. 160.

On our consideration of this case in 23 Ill.2d 380, we determined there was no proof of any mistake in the partition proceeding or in the description of the property sold. We held, in short, that the defendants had failed to prove their counterclaim. The opinion shows we considered and decided the case on its merits. There is nothing in the opinion to show there was any other defense to the action, and its evident purport is that the plaintiffs are entitled to the relief prayed.

It appears by plaintiffs’ present petition in this court that they have now waived their right to damages. Nothing remains to be done, therefore, except to enter a judgment of ejectment as prayed in the complaint. The order is reversed and the cause is remanded to the circuit court of St. Clair County with directions to enter judgment for plaintiffs in ejectment.

Reversed and remanded, with directions.