165 Ill. 228 | Ill. | 1896
delivered the opinion of the court:
Appellees insist here, as they did in the Appellate Court, that the appeal should have been taken directly to this court, for the alleged reason that a freehold is involved. We are satisfied that this question was correctly decided in the Appellate Court. The assignments of error do not call in question the decree of the trial court fixing the rights and interests of the parties in the lands in controversy, but only questions of practice in chancery. The appeal was properly taken to the Appellate Court. Cheney v. Teese, 113 Ill. 444; Walker v. Pritchard, 121 id. 221; Malaer v. Hudgens, 130 id. 225; Franklin v. Loan and Investment Co. 152 id. 345.
There can, we think, be no doubt that appellant’s cross-bill was properly stricken from the files. The rights and interests in the lands of the several parties to the cause, including those of appellant, were found and finally determined by the decree in partition, and appellant came too late with her cross-bill. The decree was in accordance with the admissions and allegations contained in her answer, and the subsequent decree of sale was in pursuance of her written assent filed in pursuance of the statute, and she was thereby precluded from claiming, by way of cross-bill or otherwise, in the absence of any showing or claim of fraud or mistake, any greater interest in the lands in controversy than had already been adjudged to her. No authority has been cited, and we know of none, holding that a cross-bill may be filed by a party defendant under such' circumstances after final decree, and which would involve a rehearing and a re-determination of the original cause, and, if sustained, a different adjudication from that already made in the decree which had been rendered. The cases, viz., Beauchamp v. Putnam, 34 Ill. 378, Davis v. American and Foreign Christian Union, 100 id. 313, Quick v. Lemon, 105 id. 578, and Morrison v. Morrison, 140 id. 560, do not sustain appellant’s position. The filing of a cross-bill is a matter of right and requires no leave of court, but it should be filed in proper time. (1 Starr & Curtis’ Stat. p. 407, sec. 30; Beauchamp v. Putnam, supra; Davis v. American and Foreign Christian Union, supra; 3 Daniell’s Ch. Pr. sec. 1745; Story’s Eq. Pl. sec. 395. See, also, 5 Ency. of Pl. & Pr. 653, and collection of cases there noted.) And it does not follow that because a defendant to a .bill has the right to file a cross-bill he may do so after hearing and decree, and thus call in question matters which, but for such cross-bill, would be concluded by such decree. In the Davis case above cited, although the cross-bill was filed some years after the filing of the original bill, it was before the hearing. In Chicago Artesian Well Co. v. Insurance Co. 57 Ill. 424, it was held that a cross-bill was properly filed after a final decree, but as there said, “the cross-bill did not seek to open that decree nor to disturb any proceeding which had been had in the suit,” but its sole purpose was to set aside a sale made by one of the parties after such decree was rendered.
There was no error committed in the suit at bar, and the judgment of the Appellate Court is affirmed.
Judgment affirmed.
Mr. Justice Cartwright took no part.