Hutchinson v. Ayres

17 Ill. App. 271, 1885 Ill. App. LEXIS 325

• Court: Appellate Court of Illinois
• Decided: December 4, 1885
• Status: Published

Opinion

Wilson, J.

We might content ourselves with saying that upon the merits of the case as disclosed in the record we are of opinion that the bill was properly dismissed as to the defendant Ayres, for the reasons stated in the opinion of the chancellor, and found in 17 Chicago Legal News, p. 223. But it may be proper to refer briefly to the condition in which the case is left by the complainants voluntarily dismissing their bill as to the defendants, Maria N. Hutchinson and John V. Thomas.

It is a familiar rule in chancery proceedings that all persons interested in the subject-matter of the litigation, must be made parties to the suit. And in Story’ Eq. Pl. § 541, it is said:

“Wherever the want of proper parties appears on the face of the bill it constitutes a good cause of demurrer. If the parties not brought before the court are necessary and proper to the decree to be made under the bill, the exception may also be insisted upon in the answer, or at the hearing.” Hpon the bill as framed, Mrs. Hutchinson and Thomas were obviously necessary parties. Mrs. Hutchinson, as shown by the bill, was not only co-executrix with Ayres, but also tenant for life of a portion of the estate which it is sought by the bill to take from her control and place in the hands of a trustee to be appointed by the court. She was also trustee for the children named in the will, and so far as appears, has never declined to accept and perform the duties of the trust. Her rights can not be divested by any suit to which she is not a party. And the same is to be said as to so much of the estate as passed into the hands of defendant Thomas.

It follows, that if the complainants had dismissed their bill as to Mrs. Hutchinson and Thomas before or upon the hearing, the court would properly have dismissed the bill as to Ayres, without proceeding to a further hearing of the case. The same result follows, as the case now stands, by the dismissal of the bill as to them after the court had dismissed the bill as to Ayres < n the hearing. This court will examine the entire record on the present writ of error, and judge as to the effect of what was done in the court below at any stage of the proceedings. The complainants have voluntarily put Mrs. Hutchinson and Thomas out of the case, and if this court were to reverse the decree as to Ayres and remand the cause to the circuit court, that court, as the case stands, would he compelled to enter another decree dismissing the bill as to Ayres for want of proper parties, if not upon the merits.

The complainants having voluntarily dismissed these parties out of the case, under no misapprehension as to the facts, we are aware of no principle or rule of chancery practice which permits them to come into this court and ask for a reversal of the decree of the court below, to enable them to go hack to that court and to ask that the order of dismissal made on their own motion be vacated.

It is true the order of dismissal was made “without prejudice as to any suit at law that complainants may be advised to bring,” but reservation is only as to complainants’ right to renew litigation as to Maria Hutchinson and Thomas in a suit at law.

The decree of the court below is affirmed.