Livingston County Building & Loan Ass'n v. Keach

Illinois Supreme Court

Livingston County Building & Loan Ass'n v. Keach

72 N.E. 769, 213 Ill. 59, 1904 Ill. LEXIS 2783

DecidedDecember 22, 1904

StatusPublished

This text of 72 N.E. 769 (Livingston County Building & Loan Ass'n v. Keach) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Livingston County Building & Loan Ass'n v. Keach, 72 N.E. 769, 213 Ill. 59, 1904 Ill. LEXIS 2783 (Ill. 1904).

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Opinion

Mr. Justice Magruder

delivered the opinion of the court:

The original bill in this case was filed by the appellant against the appellees, Anna L. Keach and Fanny L. White. Subsequently an amended bill was filed by appellant against the same parties, to which demurrers were filed by the appellees, Keach and White. These demurrers were sustained, but no order was entered by the court dismissing the bill. The order sustaining the demurrers is not a final order, and, therefore, no appeal lies from it to this court. The recital in the record is as follows: “This cause coming on to be heard on demurrer to bill herein, and after arguments of counsel and due deliberation by the court, it is considered and ordered that said demurrer be and the same is hereby sustained, to which ruling of the court complainant excepts, "and prays an appeal to the Supreme Court of this State, which is allowed upon filing bond in the sum of $100.00 to be approved by the clerk of this court within thirty days from this date.” It is true that the appeal bond, filed in the cause, recites in the condition thereof that appellees did, on June 7, 1904, obtain a decree against the appellant, dismissing its bill of complaint, and sustaining a demurrer thereto. But the statement in the condition of the appeal bond, that a decree was entered dismissing the bill does not show that any such decree was actually entered. The order of the court granting the appeal was that the bond was to be approved by the clerk of the court. The bond shows, by endorsement on its back, that it was filed and approved by the clerk. An approval by the clerk of the court of an appeal bond, containing a recital that the bill was dismissed, does not make it true that there was such dismissal. The clerk has no judicial power, and could not enter such a decree of dismissal.

In Williams v. Chicago Exhibition Co. 188 Ill. 19, we said (p. 26) : “Where a complainant is willing to rest his case upon a demurrer, he must move the court to dismiss the bill. An order dismissing the bill is final, and from it appeal or error will lie, but a decision on. the demurrer is merely interlocutory.” (See, also, Titus v. Mabee, 25 Ill. 232; Prout v. Lomer, 79 id. 331; Weaver v. Poyer, 70 id. 567).

As the present appeal is prosecuted from an interlocutory order merely, it must be and is dismissed.

Appeal dismissed.

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Mr. Justice Magruder

delivered the opinion of the court:

The original bill in this case was filed by the appellant against the appellees, Anna L. Keach and Fanny L. White. Subsequently an amended bill was filed by appellant against the same parties, to which demurrers were filed by the appellees, Keach and White. These demurrers were sustained, but no order was entered by the court dismissing the bill. The order sustaining the demurrers is not a final order, and, therefore, no appeal lies from it to this court. The recital in the record is as follows: “This cause coming on to be heard on demurrer to bill herein, and after arguments of counsel and due deliberation by the court, it is considered and ordered that said demurrer be and the same is hereby sustained, to which ruling of the court complainant excepts, "and prays an appeal to the Supreme Court of this State, which is allowed upon filing bond in the sum of $100.00 to be approved by the clerk of this court within thirty days from this date.” It is true that the appeal bond, filed in the cause, recites in the condition thereof that appellees did, on June 7, 1904, obtain a decree against the appellant, dismissing its bill of complaint, and sustaining a demurrer thereto. But the statement in the condition of the appeal bond, that a decree was entered dismissing the bill does not show that any such decree was actually entered. The order of the court granting the appeal was that the bond was to be approved by the clerk of the court. The bond shows, by endorsement on its back, that it was filed and approved by the clerk. An approval by the clerk of the court of an appeal bond, containing a recital that the bill was dismissed, does not make it true that there was such dismissal. The clerk has no judicial power, and could not enter such a decree of dismissal.

In Williams v. Chicago Exhibition Co. 188 Ill. 19, we said (p. 26) : “Where a complainant is willing to rest his case upon a demurrer, he must move the court to dismiss the bill. An order dismissing the bill is final, and from it appeal or error will lie, but a decision on. the demurrer is merely interlocutory.” (See, also, Titus v. Mabee, 25 Ill. 232; Prout v. Lomer, 79 id. 331; Weaver v. Poyer, 70 id. 567).

As the present appeal is prosecuted from an interlocutory order merely, it must be and is dismissed.

Appeal dismissed.

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72 N.E. 769, 213 Ill. 59, 1904 Ill. LEXIS 2783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/livingston-county-building-loan-assn-v-keach-ill-1904.

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