183 Ill. App. 122 | Ill. App. Ct. | 1913
delivered the opinion of the court.
No question is made as to the propriety of the order made in case No. 18,513, and as no further order is necessary in that case it will be stricken from the docket.
The only error assigned on the record in case No. 18,535 is that the Superior Court erred in sustaining the demurrer of Holinger, trustee, and Chipman to the cross-bill and in dismissing the cross-bill.
The only question which we deem it necessary to consider or decide is the question whether the appeal brings before us for decision the error assigned. No appeal was taken from the order entered July 11 sustaining’ the demurrer of Holinger, trustee, and Chip-man to the cross-bill and dismissing the same, but the appeal, by the terms of the order allowing it and of the appeal bond, was from the decree of foreclosure entered July 18 on the original bill. The general rule as to what is brought up by an appeal from a final decree is that, “While an appeal from a final decree in equity ordinarily brings up the whole cause upon its merits, including interlocutory orders connected with the decree, such an appeal does not bring up a question which was definitely adjudicated and disposed of prior to the making and entering of the final decree appealed from.” 3 Cyc. 228. “An appeal from the final decree only, cannot bring up a question which had been definitely adjudicated and disposed of previous to the time of making such decree.” Walworth, Chancellor, in Mapes v. Coffin, 5 Paige (N. Y.) 296. In Siegel v. Andrews & Co., 181 Ill. 350, it was contended that the chancellor erred in dismissing the cross-bill as to defendants who had answered and had a hearing on the cross-bill and their respective answers, and it was said (p. 356): “The contention is not tenable, because appellants have not appealed from the decree dismissing the cross-bill as to defendants who had a hearing on the bill and answers. This decree was entered January 5, 1893, and the decree appealed from was entered November 13, 1897. Appeals are purely statutory, and no one can, on appeal, complain of a decree from which he has not appealed.” “The cross-bill was no part of the original proceeding, and it in no wise depended upon it.” Myers v. Manny, 63 Ill. 211.
The record is a praecipe record. It does not include the master’s report, although the record shows that one was made and filed in the cause.
We think the court properly entered the decree of foreclosure and sale in case No. 18,535, and the decree in that case will be affirmed.
Decree in case No. 18,535 affirmed. Case No. 18,513 stricken from the Docket.
