| Ill. | Apr 1, 1896
delivered the opinion of the court:
It will be observed that the complainants in the original bill have not appealed nor have they assigned cross-errors. So far as their rights are involved they are content with the decree of the circuit court. Martin L. Fields, administrator de bonis non of the estate of Joshua Biggerstaff, is the only person who has appealed, and he alone seeks to reverse the decree denying his application for leave to sell real estate to pay debts. The first question to be determined is whether he has the right to appeal to this court, or is the case one where the Appellate Court only has jurisdiction.
Section 8 of the Appellate Court act provides: “The said Appellate Courts created by this act shall exercise appellate jurisdiction only, and have jurisdiction of all matters of appeal or writs of error from the final judgments, orders or decrees of any of the circuit courts, or the Superior Court of Cook county, or county courts, or from the city courts, in any suit or proceeding at law or in chancery, other than criminal cases not misdemeanors, and cases involving a franchise or freehold or the validity of a statute. Appeals and writs of error shall lie from the final orders, judgments or decrees of the circuit and city courts, and from the Superior Court of Cook county, directly to the Supreme Court, in all criminal cases and in cases involving a franchise or freehold or the validity of a statute.” Under this statute, unless a freehold was involved the appellant could not appeal to this court, but was required to go to the Appellate Court. It may be conceded that a freehold was involved in the original bill for partition, but neither that bill nor the decree rendered in regard to it is involved in the case now before us, and hence the fact of a freehold being involved in the original bill has no bearing on the question of jurisdiction in this case. This principle is settled by Franklin v. Loan and Investment Co. 152 Ill. 345" date_filed="1894-10-29" court="Ill." case_name="Franklin v. Loan & Investment Co. of North America">152 Ill. 345, where we held, that where a freehold is involved in the original decree, but not in the points assigned for error, the appeal must be taken to the Appellate Court. See, also, Moore v. Williams, 132 Ill. 591" date_filed="1890-04-22" court="Ill." case_name="Moore v. Williams">132 Ill. 591, where the same rule is declared.
The question then recurs, whether, on an application for leave to sell lands to pay debts, where no question in regard to the title to the land is raised by any party to the suit, a freehold is involved. There was no question here in regard to the title to the land. The only question before the court, so far as appellant was concerned, was whether debts existed unpaid against the estate of Joshua Biggerstaff, which had been properly allowed, for the payment of which he, as administrator, was entitled, under the statute and laws, to sell lands of which said Biggerstaff died seized. In a proceeding to foreclose a mortgage a freehold is not involved, although the land is ordered sold to pay the debt. (VanMeter v. Thomas, 153 Ill. 65" date_filed="1894-10-29" court="Ill." case_name="Meter v. Thomas">153 Ill. 65.) As between an attaching creditor and the defendant in attachment no freehold is involved, although the defendant’s land may be levied on under the writ. (Ducker v. Wear & Boogher Dry Goods Co. 145 Ill. 653" date_filed="1893-06-19" court="Ill." case_name="Ducker v. Wear & Boogher Dry Goods Co.">145 Ill. 653.) Upon the same principle no freehold was involved in the application in this case. If any one of the parties to the bill had appeared and set up that the title was not in Joshua Biggerstaff at the time of his death but that another person was seized of the land, and an issue of title had been presented, then a freehold would have been involved and an appeal would properly have come to this court. But such was not the case. No issue of title was made in the circuit court and none was determined.
The appeal will be dismissed.
Appeal dismissed.