Herdman v. Cooper

17 N.E. 826, 125 Ill. 359

• Court: Illinois Supreme Court
• Decided: June 16, 1888
• Status: Published

Opinion

Mr. Justice Scott

delivered the opinion of the Court:

This writ of error must he dismissed. It is very clear no freehold is involved in the present litigation, nor, indeed, any other question that would give this court jurisdiction, in the first instance, to hear and determine the cause. It should have been taken to the Appellate Court in the proper district. It is seen the bill was simply to enjoin the sale of a certain lot that had been levied upon by the sheriff by virtue of an execution issued on a judgment in favor of one of defendants and against one of complainants, on the ground it is and has been the homestead of the execution debtor. The only question made is, whether the property is subject to the lien of the judgment, and therefore liable to sale on the execution. It has been so frequently decided by this court that no freehold is directly involved in such cases, no further discussion is necessary. Previous decisions are conclusive upon the point made in this case against the jurisdiction of this court in the first instance. Johns v. Boyd, 117 Ill. 339; Galbraith v. Plasters,. 101 id. 444.

The parties will have leave to withdraw their respective briefs, on each party paying his own costs for filing the same, and plaintiffs in error will have leave to withdraw the transcript of the record and their abstracts, on paying the costs they have made in this court, if they desire to do so, for the purpose of filing the same in the Appellate Court for a writ of error.

The writ of error will be dismissed.

Writ dismissed.