Domestic Building Ass'n v. Nelson

66 Ill. App. 601, 1896 Ill. App. LEXIS 757

Opinions

Mr. Justice Waterman

delivered the opinion op the Court.

The defendant here, complainant below, insists that the manifest error of entering a decree for the sale of lot 33, which, according to the allegations of the bill, had been released from the incumbrance of the trust deed (see Forquer v. Forquer, 21 Ill. 294), does not appear to have been harmful to the plaintiff in error, because the record does not show that plaintiff in error has any interest therein, and therefore is not shown to have been harmed thereby.

Plaintiff in error, it is charged in the bill, had, or claimed, an interest in this lot, and this bill has been taken as confessed by plaintiff in error.

If by the record it appeared that the plaintiff in error ivas not prejudiced by the error, it could not complain of the erroneous decree; but as from the record it appears probable that there was thus an injury to the party now complaining, it is entitled to prosecute this suit, and it is for the defendant in error to show that there was no injury. Greene v. White, 37 N. Y. 405; Elliot on Appellate Procedure, Sec. 593; Walling v. Burgess, 122 Ind. 298-309.

Plaintiff in error being a party to the decree, was bound thereby, and whatever interest it had in lot 33 was injuriously affected by.the error in regard thereto.

As to the other alleged errors, if errors they be, they are not of such a nature that, without exceptions to the master’s report, plaintiff in error can, here, for the first time, insist thereon.

The decree of the court in reference to said lot 33 is reversed and the cause remanded, with directions to permit the complainants below to -amend their bill, if they desire, and for further proceedings not inconsistent with this opinion.

Beversed and remanded with directions.