Rose v. Choteau

11 Ill. 167

• Court: Illinois Supreme Court
• Decided: December 15, 1849
• Status: Published

Opinion

Opinion by Treat, C. J.:

Choteau recovered a judgment against Rose and Campbell, and, under executions issued thereon, purchased certain real estate, and received a conveyance from the officer. On his application, the Circuit Court set aside the executions, and all the proceedings under them; and Rose and Campbell prosecuted an appeal from the decision setting aside- the executions; which the appellee now moves to dismiss.

Appeals are allowed " where the judgment or decree appealed from he final, and shall amount, exclusive of costs, to the sum of twenty dollars, or relate to a franchise or freehold.” Rev. Stat., chap. 83, sec. 47. The question before the Court related to the regularity of the proceedings under the judgments, and not to the title to the land. The Court held the proceedings to be irregular; it did not determine the rights of the parties in the cause. There was no adjudication of that question,. To justify an appeal on the ground that the judgment relates to a freehold, the right of the freehold must have been directly the subject of the action—not incidentally or collaterally; and the judgment must be conclusive of the right, until it is reversed. The judgment in this case does not conclude either party from asserting title to the land. The effect of it may be to prevent Choteau from claiming title under the judgment, but he is not precluded from setting up title derived from any other source. The proper mode of reviewing the decision is by a writ of error. The appeal will be dismissed.

•Appeal dismissed.