51 Ill. 530 | Ill. | 1869
A rehearing was allowed in this case, not on the merits, as we are of opinion they are with the appellee, hut on a point not directly raised by appellant or discussed when the cause was argued, and that is, that the decree was in personam, when it should have been in rem.
This error is sufficient to reverse the decree, and it must be reversed. Had the attention of the court been called to this on the argument of the cause, there would have been no occasion for this rehearing. It was appellant’s fault the point was not distinctly made. But appellee was also in fault in not having a proper formal decree entered. Under these circumstances, it is but just some equitable disposition of the costs should be made. We are of opinion that, for the error allowed, the decree of the circuit court must be reversed and the cause remanded, with directions to the circuit court to enter a decree finding the amount due the complainant, as in the original decree, to be ascertained by calculating the interest on the judgment against John M. Wilson on the notes to the time of entering the final decree, and then decree, if the amount so found due be not paid within the time to be fixed by the decree, that then the property be sold to satisfy the same, by the master in chancery, at such time and on such terms as the said court shall prescribe, reserving, however, the right of redemption.
The other point made by appellant, that the decree is for too much, is untenable. It is less than appellee was entitled to recover. Each party will pay his own costs of this proceeding.
Decree reversed.
