76 Ill. App. 510 | Ill. App. Ct. | 1898
delivered the opinion of. the court.
This is an appeal from an order striking from the files a cross-bill of appellant.
January 19, 1897, John Gould filed a bill of interpleader making John E. Townsend, Joseph E. Paden, Martin M. Gridley, and Charles H. Lawrence, the appellant, defendants thereto. .The bill avers, in substance, that April 27; 1895, the complainant, Gould, leased from Townsend certain premises, described in the bill, for twenty-four months,at a monthly rental of $40 per month, and that he had paid the rent up to the end óf October, 1895; that November 5, 1895, he was notified in writing by Charles H. Lawrence that-a written contract had been entered into between Lawrence and Townsend for the purchase by the latter from the former of the premises; that Townsend had not complied with his contract and the title was still in Lawrence, and that he,. Lawrence, would look to .Gould for the rent; that November 14, 1896, the complainant received from Paden & Gridley a notice that Townsend had assigned to them the amount of rent then due, and also at same date, a notice of said assignment from Townsend; that -Paden & Gridley threatened to bring suit for the rent, and that January 12,1897, Lawrence demanded of complainant possession of the premises, and January 14,1897, commenced an- action of forcible detainer to recover such possession before a justice of the peace. The complainant offered to bring the rent into court and pay it to whomsoever the court might direct and prayed that the defendants might interplead, etc. Townsend, Paden and G-ridley demurred to the bill, and February 9, 1897, the demurrer was sustained and the bill dismissed as to them, thus leaving Lawrence the sole defendant to the bill.
February 25, 1897, Lawrence filed an answer to the bill, averring, among other things, that August 12,1894, he was the owner of lots 8, 9, 10 and 13 in a certain subdivision,, the leased premises being a part of lot 10, and that, at that date, he entered into a contract with Townsend for the purchase by the latter of said premises. The answer then sets out the contract, which is quite complicated, claims that Townsend did not comply with it, and that November 13,1896, he served a notice on Townsend that unless, within thirty days from that date, he should comply with his contract, it would be declared forfeited, and that he did not comply with it; that the pretended assignment of the rents from Townsend to Paden & G-ridley was fraudulent and collusive as between the parties to it; and that the rents were not payable by the terms of the lease until April, 1897. The answer concludes with a prayer that it may be taken as a cross-bill and for a decree establishing appellant’s rights, etc.
March 29, 1897, appellant filed a cross-bill alleging substantially the same facts as in his answer theretofore made a cross-bill, and praying for process of summons to Townsend, Paden and G-ridley, as to whom the original bill had theretofore been dismissed.
March 31, 1897, a demurrer was filed by Gould to the cross-bill, and April 5, 1897, the demurrer was overruled. Summons was served on Paden & G-ridley, and, July 7, 1887, Paden & Gridley filed a motion in writing to strike the cross-bill from the files, assigning reasons, etc. July 16, 1897, the court sustained the motion and struck the cross-bill from the files. The objection is made that the order striking the cross-bill from the files is not a final order or decree from which an appeal lies. Appeals are unknown to the common law, and exist solely by virtue of the statute, and the statute allows appeals only “from all final judgments, orders and decrees.” The bill of interpleader is still pending, and there has been no final adjudication of the issues, as between the parties whom the bill prays may interplead, namely, who, as between the parties named in the bill, is entitled to the rents. In addition to this, the cross-bill appears to have been unnecessary. Appellant having already answered, and made his answer a cross-bill, his rights could have been fully adjudicated on his answer if sufficient, and if he deemed the answer insufficient in any particular, he may apply to the court for leave to amend it, when his rights, as between him and Townsend, if the latter shall be made a party, can be fully adjudicated.
A cross-bill would seem to be unnecessary as between the defendants to a bill of interpleader. It is only necessary for them to set up their grounds of claim or right to the subject-matter of the bill, and the court can then adjudge who has the better right and, under the prayer of the bill, decree accordingly.
“ If the judgment of the trial court leaves either party at liberty to again apply to that court for relief, the judgment is not final, and no appeal can be taken therefrom. Furthermore, there must be a final disposition of the whole case. If a case against several is finally disposed of as to one, leaving other proceedings to be had to determine the matters as to others, there is no such final judgment as the law contemplates as the basis of an appeal.” 2 Shinn’s Pl. and Pr., Sec. 1013.
Woodside v. Woodside, 21 Ill. 207, was error to reverse a judgment for costs rendered on a verdict on a feigned issue out of chancery. The suit was dismissed, the court saying: “ This judgment was interlocutory only, from which an appeal or writ of error will not lie. There must be -a final decision of the chancery cause before either party can have part of it reversed in this court; such a decision of the whole case as settled the rights of the parties respecting the subject-matter of the suit and which concludes them until reversed.” See also the following cases: Thompson v. Follansbee, 55 Ill. 427; Gage v. Eich, 56 Ib. 297; Racine & M. Rd. Co. v. Farmers L. & T. Co., 70 Ib. 249; International Bank v. Jenkins, 109 Ib. 219; Farson v. Gorham, 117 Ib. 137; Sholty v. Sholty, 140 Ib. 81; Ben. Ass’n v. Farwell, 5 Ill. App. 240, citing numerous cases.
Counsel for appellant have cited cases in which appeals were entertained from orders dismissing cross-bills on the ground, apparently, that they were exceptions to the general rule, but we do not think that the present case falls within any well-recognized exception to the rule, nor can we perceive how any hardship can accrue to appellant from the dismissal of the cross-bill. The complainant can have no relief against appellant as the record now is. The bill is to compel appellant Townsend and others to litigate the question of the right to the rents of the leased premises, and the bill having been dismissed as to all except appellant, to which dismissal no one seems to have objected, there is no one left with whom, under the bill of interpleader, appellant can litigate that question. If appellant desires to litigate with Townsend respecting his alleged rights under his contract with him, he can do so by original bill. It is apparent that if the court ruled correctly in dismissing the bill against all the defendants except appellant (in reference to which we express no opinion), it should also have been dismissed as to appellant.
The question discussed by counsel, whether the striking the cross-bill from the files was proper practice, is not necessary to be considered, because, whether it was or not proper practice can not affect the question whether the order was or not appealable. We are of opinion that the order striking appellant’s cross-bill from the files is not a final order and not appealable. The appeal, therefore, will be dismissed. Appeal dismissed.