Noyes v. Clarke

Appellate Court of Illinois

Noyes v. Clarke

161 Ill. App. 297, 1911 Ill. App. LEXIS 737

CourtAppellate Court of Illinois

DecidedApril 18, 1911

DocketGen. No. 15,465

StatusPublished

This text of 161 Ill. App. 297 (Noyes v. Clarke) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Noyes v. Clarke, 161 Ill. App. 297, 1911 Ill. App. LEXIS 737 (Ill. Ct. App. 1911).

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Opinion

Mr. Presiding Justice Smith

delivered the opinion of the court.

It appears from the answer of appellant Walter M. Boewer to the petition for writ of assistance in this case, that appellant came into possession of a part of the premises in question long subsequent to the entry of the decree of foreclosure, and that he acquired possession through Albert Wesley Gottschalk who was bound by the decree. In our opinion appellant has no ground for maintaining this appeal. Kessinger v. Whittaker, 82 Ill. 22.

It further appears that appellant was not and is not a party to the record, and he is not for that reason entitled to prosecute an appeal from the order granting the writ of assistance. Harwood v. Cox, 26 Ill. App. 374. In order to become a party to the record he should have appeared and moved the court to vacate the order granting the writ, and then, if the motion was denied, appeal from the order denying his motion, or if the writ is executed, move to be restored to the possession, and if the motion be denied, take his appeal.

Not being a party to the proceeding below, he is not entitled to appeal. This appeal must therefore be dismissed.

Appeal dismissed.

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Mr. Presiding Justice Smith

delivered the opinion of the court.

It appears from the answer of appellant Walter M. Boewer to the petition for writ of assistance in this case, that appellant came into possession of a part of the premises in question long subsequent to the entry of the decree of foreclosure, and that he acquired possession through Albert Wesley Gottschalk who was bound by the decree. In our opinion appellant has no ground for maintaining this appeal. Kessinger v. Whittaker, 82 Ill. 22.

It further appears that appellant was not and is not a party to the record, and he is not for that reason entitled to prosecute an appeal from the order granting the writ of assistance. Harwood v. Cox, 26 Ill. App. 374. In order to become a party to the record he should have appeared and moved the court to vacate the order granting the writ, and then, if the motion was denied, appeal from the order denying his motion, or if the writ is executed, move to be restored to the possession, and if the motion be denied, take his appeal.

Not being a party to the proceeding below, he is not entitled to appeal. This appeal must therefore be dismissed.

Appeal dismissed.

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161 Ill. App. 297, 1911 Ill. App. LEXIS 737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/noyes-v-clarke-illappct-1911.

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