Prouty v. Moss

Mr. Justice Wilkin delivered the opinion of the court: It has been held by this court that a freehold is involved, within the sense of the constitution and'statute, only in cases where the necessary result of the judgment or decree is that one party gains and the other loses a freehold estate, or when the title is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue; (Malaer v. Hudgens, 130 Ill. 225; Sanford v. Kane, 127 id. 591;) aud where a freehold is involved in the original decree but not in the points assigned for error, the appeal should be to the Appellate Court and not to this court. (Franklin v. Loan and Investment Co. 152 Ill. 345, and cases cited; Fields v. Coker, 161 id. 186; Fread v. Fread, 165 id. 228; Rhodes v. Rhodes, 172 id. 187.) It may be conceded that a freehold was involved in the original proceeding brought by John S. Newhouse, but that a freehold is involved in the present writ of error does not appear. If the judgment of the circuit court be affirmed, the only effect will be to estop the plaintiffs in error from further prosecuting the present bill, but leaving them to pursue any other remedies they may have. If the judgment of the lower court be reversed, the only action this court could take would be to remand the cause to that court with instructions to revive the original suit. Theu the cause might proceed to a decree on the merits of the contention as to the ownership of the freehold, from which an appeal would lie to this court direct, but in the present status of this cause this court cannot enter into a discussion of the merits of the original contention. No such relief is prayed for in the present bill, nor could this court grant it if it was, on the error assigned. This writ of error should have been prosecuted to the Appellate Court, and the motion of the defendants in error here will be allowed and the writ of error dismissed. Writ dismissed.