Field v. Kenneweg

75 N.E. 986, 218 Ill. 366

• Court: Illinois Supreme Court
• Decided: December 20, 1905
• Status: Published

Opinion

Mr. Justice Hand

delivered the opinion of the court:

The suing out of a writ of error is deemed the beginning of a new suit, and in Granat v. Kruse, 213 Ill. 328, it was said (p. 331) : “A plaintiff in error has the same right to dismiss a writ sued out in his name that he has to dismiss a suit begun by him in a court of original jurisdiction.”

It is urged, however, by the appellant that two hundred and twenty-six of the plaintiffs in error did not join in the motion to dismiss the writ of error, and it is said the apparent object of the eighteen plaintiffs in error in dismissing the writ was for the purpose of suing out a new writ with a view to cloud appellant’s title, and that a second writ of error from the Appellate to the circuit court to review the final decree entered in said consolidated case will not lie. In Thorp v. Thorp, 40 Ill. 113, it was held that where a writ of error is sued out by several, a part may dismiss the writ as to themselves and leave the remaining plaintiffs in error to prosecute their suit if they desire. The eighteen plaintiffs in error were the only persons who were prosecuting the writ of error, and they clearly had the right to dismiss the writ as to themselves. What effect the dismissal as to them had upon the order entered by the Appellate Court against the two hundred and twenty-six defendants who refused to join in the writ of error and against whom a severance was had and who were brought in as plaintiffs in error by the service of process, and whether the plaintiffs in error have the right to sue out another writ of error from the Appellate Court to review the final decree entered in the consolidated case, are questions not presented upon this record for decision, and we at this time express no opinion upon those questions. If the eighteen plaintiffs in error had the right, as they clearly did, to dismiss the writ as to themselves, their purpose in exercising that right is a matter which cannot be reviewed or controlled by the courts.

The judgment of the Appellate Court allowing the eighteen plaintiffs in error who were actively prosecuting the writ of error to dismiss the writ as to themselves is affirmed.

Judgment affirmed.