160 Ill. 371 | Ill. | 1896
delivered the opinion of the conrt:
Defendant in error filed his bill in the Superior Court of Cook county to subject certain lands, the title to which was in Carrie E. Martin, wife of plaintiff in error Morris T. Martin, to the payment of a judgment against the latter. The trial court dismissed the bill on the hearing, and the decree was affirmed by the Appellate Court. On appeal to this court the judgment of the Appellate Court and the decree of the Superior Court were reversed, and the cause was remanded to the Superior Court for further proceedings not inconsistent with the views expressed in Lachman v. Martin, 139 Ill. 450. In the opinion in the case at bar it was said that the case is controlled by the Lackman case, which was decided and the decree reversed upon the evidence.
When the case at bar went back to the Superior Court, it was, upon notice, re-instated on the docket upon the mandate of this court and placed on the trial calendar. Afterwards the solicitor for complainant below served notice on the solicitors for defendants below that he .would move to have the decree which was submitted with the notice for inspection, entered, upon opening the Supreme Court files and proceedings in said cause, and the parties then entered into the following stipulation: “It is agreed that the above motion may be continued, to be placed on the next contested motion calendar (to be called after vacation). It is also agreed that on the hearing of said motion either party may read the printed abstract of the record which was filed in the Supreme Court of Illinois in said case, instead of the record itself, or part of said abstract, when the record itself would be admissible. ” Afterward the cause came on for a hearing, and it seems to have been heard, under the stipulation, upon the record as already made in that court and in the Supreme Court, the abstract being used in.lieu of the transcript of the record itself. Neither party offered any further evidence, nor was any objection made to going to a hearing upon the record as already made.
Much of the argument is addressed to the question whether or not the cause should have been tried anew upon such evidence as the parties saw proper to introduce, but we do not deem it necessary to consider that question, as we are satisfied plaintiffs in error waived any right they may have had to insist upon such a trial. The decree finally rendered was such a decree as should have been rendered upon the evidence adduced upon the first trial, and is in accordance with the views expressed in the Lachman case, which this court said controlled the case at bar. Even if plaintiffs in error had the right, as they now contend, to have the case tried de novo and to introduce further evidence on their behalf, their contention can avail nothing here, they having waived it in the court below. This is the view which the Appellate Court seems to have taken of the question when it was there considered on error, and we are satisfied the conclusion reached was the proper one. The judgment of
that court is therefore affirmed.
„ , Judgment affirmed,.
