Biegler v. Merchants' Loan & Trust Co.

Mr. Justice Baker delivered the opinion of the court: The Appellate Court properly disposed of the cause, and we concur in and adopt the views expressed in its opinion. We have carefully examined the elaborate briefs filed in this court by counsel for appellant, and it seems to us that there is but one point upon which there is occasion for adding anything to what has already been said in the case. Appellant urges that the original bill prayed an accounting, injunction, receiver and dissolution between partners who had formed a partnership for the purpose of racing horses for money, purses and prizes on different race tracks in this and other States; that the contract and partnership entered into were for the purpose of gaming, and an illegal contract or partnership, and under our statutes void and not enforcible; that therefore the court had no jurisdiction to entertain the original and supplemental bills; that the cross-bill was auxiliary to and dependent on the original and supplemental bills, and that the court having no jurisdiction over the original and supplemental bills the cross-bill must fail; and he complains that the Appellate Court passed no opinion as to the legality of the partnership agreement, or the partnership subsisting under that agreement. The original bill was for an injunction and the appointment of a receiver, and for the dissolution of an alleged partnership and the settlement of the partnership accounts. These are all matters that are within the general jurisdiction of a court of chancery. The supplemental bill was in line with the original bill, and was filed for the purpose of subjecting certain legal rights claimed by appellee to the supposed equities of appellant. Appellant came into the chancery court claiming in both his bills that he had equitable rights, and these rights, so claimed, were of such character as that, if they had any valid existence, they were properly cognizable in that court, and in that court only. He had a right to be heard in that court in support of his claim, and had a right to contend that the partnership agreement was a valid agreement and the partnership entered into a lawful partnership, and that he was entitled to all the benefits resulting therefrom. The court, without doubt, had jurisdiction to give judgment upon the case that he exhibited. Suppose a demurrer had been interposed to the bills for want of equity; would he not have had a right to insist upon the validity of the contract and partnership? And would not the court have had jurisdiction to adjudicate upon such contentions? If A should sue B in an action at law to recover §100 won on a horse race, would not the court have jurisdiction to adjudicate in the suit? In Tatman v. Strader, 23 Ill. 493, cited by appellant, it was an open question whether winning money on a horse race was gaming, this court reversing the decision of the court below. When a complainant files a bill that properly falls under one or another of the heads of ordinary chancery jurisdiction, the right of the defendant to maintain a cross-bill that is germane to the original bill is not de^ pendent upon the validity of the claim made in the original bill. If answer is interposed, instead of a demurrer, to the original bill, the court may at the hearing dismiss the bill for want of equity, and it is immaterial whether this be done for want of proof or because the bill does not, on its face, show a case for equitable relief. Here, appellant himself set up the contract and the partnership and claimed their validity, and invoked the equitable jurisdiction of the court. He enjoined appellee from the prosecution of its suit at law and forced it into chancery. He answered the cross-bill, and not only did not claim appellee had an adequate remedy at law or challenge the jurisdiction of the court of equity to entertain the cross-bill, but expressly conceded and agreed to the exercise of such jurisdiction, and neither he nor any of the other parties to the litigation made any claim or suggestion in the circuit court that the said partnership agreement whs illegal or the partnership not a valid partnership. The matters alleged in appellant’s bills related to matters of contract, and were not wholly foreign to the jurisdiction of a court of chancery. (Richards v. Lake Shore and Michigan Southern Railway Co. 124 Ill. 516; Stickney v. Goudy, 132 id. 213.) It would be inequitable to allow appellant to deny for the first time after appeal taken, the equitable jurisdiction which he himself invoked and forced appellee to submit to. Clemmer v. Drovers’ Nat. Bank, 157 Ill. 206, and authorities there cited. After the issues had been formed in the cause, and the evidence reported by the master, appellant dismissed his original and supplemental bills as to George W. Leihy and Morgan P. Leihy, and this eliminated from the cause the matter of the partnership agreement between appellant and said Leihys. Consequently the matters of the said partnership and said partnership agreement were not submitted to the decision of the circuit court, and, in fact, said court made no adjudication and rendered no decree in regard thereto, and so there is no occasion for expressing an opinion on the question that was first raised upon appeal, as to the legality of the partnership and partnership agreement. The judgment of the Appellate Court is affirmed-. Judgment affirmed.