213 Ill. 397 | Ill. | 1904
delivered the opinion of the court:
The order of the superior court was reversed by the Appellate Court and the cause was remanded. An appeal is prosecuted from the Appellate Court to this court on the theory that the judgment of that court is “such that no further proceedings can be had in the court below except to carry into effect the mandate of the Appellate Court.” The appellee moves to dismiss the appeal, and argues that the judgment of the Appellate Court does not fall within the language above quoted, which is from section 91 of chapter no, Hurd’s Revised Statutes of 1903. The judgment of the Appellate Court is that the order of the superior court be reversed “and that this cause be remanded to the superior court of Cook county for further proceedings in accordance with the views expressed in the opinion of this court.” The opinion of that court contains these words: “Appellee Wen-ham took nothing by his purchase at the sheriff’s sale, and the motion of the appellant should have been allowed.” Any further proceedings in the superior court must have been in accord with that language had no appeal been prosecuted to this court.
Where a court of appellate jurisdiction, in considering a cause, determines the issues and decides the questions involved upon their merits, and the case is reversed and remanded with directions to proceed in conformity with the views expressed in the opinion, there is no power in the court below except to enter a final order or judgment without a re-trial; and for the purpose of ascertaining whether ihe appellate tribunal has determined the issues and decided the questions involved upon their merits, it is necessary to ascertain what the issues are and to examine the opinion of the court which deals therewith. In re Estate of Maher, 210 Ill. 160.
In this case, the sole question is whether Wenham took anything by his purchase at the sheriff’s sale. The Appellate Court determined that question on its merits adversely to appellant, holding that the motion made in the superior court by the International Packing Company, which is appellee here, should have been allowed. Had the case gone back to the superior court in accordance with the judgment of the Appellate Court, it is manifest that the superior court could have done nothing but carry into effect the mandate of the Appellate Court by allowing the motion of the packing company, appellee here. ■
The motion to dismiss the appeal will be denied.
Section i of chapter 77, Hurd’s Revised Statutes of 1903, provides that a judgment of a court of record shall be a lien on the real estate of the defendant within the county for a period of seven years, but that if execution is not issued thereon within one year from the time the same becomes a lien, it shall cease to be a lien after the expiration of that year. Section 2 of the same chapter is in words and figures following:
“When the party in whose favor a judgment is rendered is restrained, by.injunction out of chancery, or by appeal, or by the order of a judge or court, or is delayed, on account of the death of the defendant, either from issuing execution or selling thereon, the time he. is so restrained or delayed shall not be considered as any part of the time mentioned in sections 1 or 6 of this act.”
The question here is whether Cichowicz was restrained by the order of the court by which appellee was permitted to plead. That order was entered on July 14, 1900, and so far as material was as follows: “Now, on this day it is ordered that leave be and is hereby given the defendant to plead herein instanter, and the judgment heretofore entered herein of record to stand as security.”
In Hier v. Kaufman, 134 Ill. 215, a similar order had evidently been made in reference to a judgment by confession, and this court there said that a court of law exercises an equitable jurisdiction over a judgment by confession and may open the judgment and allow the debtor to present his defense, but will protect the creditor “by permitting the judgment to stand as security,- in such cases, the proceedings on the judgment are merely stayed; the enforcement of the plaintiff’s lien is suspended, but the lien is fully preserved; if the defense is successful, the judgment falls; if otherwise, the judgment is to be enforced.” While the question involved in that case was not the same as the one now before us, we are of the opinion that the language quoted is an accurate statement of the law applicable here.
The order is, that the judgment is to stand as security, which, we think, means that it is to stand or exist for no other purpose. The object of the entire order is to permit the defendant to present his defense, saving, however, to the plaintiff all rights acquired by the judgment in case the defense is without merit. If after the making of this order the plaintiff could have proceeded to enforce the judgment by execution, it is manifest that the right of the defendant to plead might be of no avail whatever, because even if it were successful on the trial of the issue formed by its plea, the plaintiff might have collected the original judgment and put the proceeds beyond the reach of the defendant long before the determination of the issue raised by the plea.
The order under consideration operated to restrain the plaintiff from the date of its entry, July 14, 1900, until the date of the judgment entered in pursuance of the verdict, which was February 14, 1902. Excluding this period, the execution wras issued within a year from the time the original judgment became a lien.
Our view of this matter is supported by the following authorities: 6 Ency. of Pl. & Pr. 221, 222; Ford v. Whitridge, 9 Abb. Pr. 416; Rodbourn v. U., I. & E. R. R. Co. 28 Hun, 369; MacDougall v. Hoes, 58 N. Y. Supp. 209.
It is urged that the sale under the execution should be set aside because the real estate was sold en masse for a sum so much less than the value of the property as to be grossly inadequate. The property consisted of two lots. It appears by the sheriff’s return that they were offered separately, and no bids being received on either, they were then offered together and sold to Wenham; but it is said that Wenham’s bid upon which the sale was made was not a reasonable one in amount* because it was very much less than the value of the property, and that the sheriff should have refused to accept the bid and continued the sale. There is in this record .no evidence whatever of the value of the property on the day of the sale under execution, and this question for this reason does not arise on this record.
The judgment of the Appellate Court will be reversed and the order of the superior court will be affirmed.-
Judgment reversed.
