231 Ill. 314 | Ill. | 1907
delivered the opinion of the court:
The motion by the appellee to dismiss the case on the ground that no freehold is involved was taken with the case.
The chief question raised by the assignment of errors is as to the amount of damages allowed by the decree. All other questions raised are incidental and subsidiary to this main question. The briefs of both parties show that this is the only point in dispute. The last opinion of this court (in Eppstein v. Kuhn, supra,) found, in terms, that the former decree of the court requiring specific performance was proper. The trial court did not attempt, and had no right, to review that question. It was res judicata under the former decision. (Hough v. Harvey, 84 Ill. 308; Washburn & Moen Manf. Co. v. Wire Fence Co. 119 id. 30; Sanders v. Peck, 131 id. 407; West v. Douglas, 145 id. 164; Windett v. Ruggles, 151 id. 184; Hardin v. Shedd, 177 id. 123; Noble v. Tipton, 222 id. 639.) Manifestly, the only question left open for review in the lower court by the former decision of this court was simply the amount of damages, and not the title to the property. We held in Smith v. Gallentin, 171 Ill. 423, that an appeal from a decree requiring specific performance of a contract to convey land upon the payment of an amount of money was to the Appellate Court, where the making of the contract and the right of conveyance were conceded, the only objection being that the decree found a wrong amount due. That is the exact situation that presents itself here, and that case must control.
A freehold is not involved in any of the questions raised by the parties on this appeal, neither will one 'party gain nor the other lose a freehold as a necessary result of the decree. (Sanford v. Kane, 127 Ill. 591.) That question was involved in the former proceeding, but was, as has been stated, settled and cannot be again inquired into. On principle, the same reasoning must apply to this case .as has frequently been applied by this court to that class of cases where the decree in the lower court did involve the question of freehold but where the errors assigned were as to parts of the decree other than those relating to the freehold, it being held that such appeals should be taken to the Appellate Court. Miller v. Kensil, 223 Ill. 201; Malaer v. Hudgens, 130 id. 225; In re Estate of Ross, 220 id. 142; Hutchinson v. Spoehr, 221 id. 312.
The clerk of this court is directed to transmit all the files herein to the clerk of the Appellate Court for the Third District.
Cause transferred.