Board of Education v. Board of Education

22 N.E.2d 400, 301 Ill. App. 228, 1939 Ill. App. LEXIS 610

• Court: Appellate Court of Illinois
• Decided: August 7, 1939
• Docket: Gen. No. 9,420
• Status: Published

Opinion

Mr. Justice Huffman

delivered the opinion of the court.

This was a suit by appellant district against appellee district for the collection of tuition money. Appellee district filed its motion to dismiss the complaint, which motion was in the nature of a demurrer. The court sustained the motion to dismiss. Appellant has prosecuted this appeal from the order of the court sustaining the motion.

An order merely sustaining a demurrer to the complaint, and upon which no judgment is entered, is not a final adjudication. Freeman on Judgments (5th ed.) vol. 2, p. 1512, par. 717. This rule is observed in the case of Trebbin v. Thoeresz, 316 Ill. 30, 32; Barber v. Wood, 318 Ill. 415. In each of the above cases it is stated that under such circumstances, the court will of its own motion dismiss the appeal. It is further stated by Freeman in the paragraph above referred to, that a judgment for costs only, without a determination of the cause, is not a final judgment. This principle is announced in Williams v. Huey, 263 Ill. 275. Where a motion to dismiss a complaint, which is in the nature of a demurrer, is sustained, for such ruling to become final, a judgment should be entered for the defendant to the effect that the plaintiff take nothing by virtue of such action and that the defendant go hence without day, or words of similar import and meaning. Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200. This same principle is announced in the cases of County of Franklin v. Blake, 257 Ill. 354; Williams v. Huey, supra, and Prange v. City of Marion, 297 Ill. App. 353.

The appeal herein is dismissed.

Appeal dismissed.