Callahan & Son v. Ball

Mr. Chief Justice Magruder delivered the opinion of the court: A motion has been made in this cause by the appellee to dismiss the appeal, upon the ground that the judgment rendered by the Appellate Court was not a final judgment. This motion has been reserved to the hearing of the cause, and will now be disposed of. By the terms of section 90 of the Practice act, a case can only be brought by appeal, or writ of error, from the Appellate Court to the Supreme Court in three cases: First, where the judgment of the Appellate Court is “that the order, judgment or decree of the court below be affirmed;” second, where a final judgment or decree is rendered in the Appellate Court; and third, where the judgment order or decree of the Appellate Court is such, “that no further proceedings can be bad in the court below except to carry into effect the mandate of the Appellate Court.” If the present appeal is properly prosecuted to this court, the case in hand must belong to one or the other of these three classes, inasmuch as the statute has provided for no other classes. Certainly, the judgment of the Appellate Court does not affirm the decree of the circuit court, and, therefore, does not come within the first class. It is equally clear, that the judgment of the Appellate Court does not come within the second or third class, because it is not a final judgment, nor such a judgment that no further proceedings can be had in the circuit court except to carry into effect the mandate of the Appellate Court. A judgment is said to be final when it terminates the litigation between the parties on the merits of the case, so that, when affirmed by the reviewing court, the court below has nothing to do but to execute the judgment or decree it had already entered. (Chicago and Northwestern Railway Co. v. City of Chicago, 148 Ill. 141; Gade v. Forest Glen Brick Co. 158 id. 39). In the case at bar, the judgment of the Appellate Court reverses the cause and remands it to the circuit court, with directions to allow amendments to the pleadings if desired, and to state an account between Whitlow and Ball, and render such a decree as will be consistent with the holding, that the deed in question was a mortgage to secure an indebtedness to Ball, the grantee therein. We have held that, where the judgment of the circuit court is reversed and the cause is remanded, no appeal lies from the Appellate Court to the Supreme Court, as such judgment is in no sense final. (Buck v. County of Hamilton, 99 Ill. 507; Gade v. Forest Glen Brick Co. supra). The judgment of the Appellate Court in the present case reverses and remands the cause. Nor can it be said that the judgment of the Appellate Court here 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 bill, filed in the circuit court, not only prayed that the deed, executed by Whitlow to Ball, be set aside and canceled, but also that the bond for a deed, executed at the same time when the deed was executed, and the note for $9000.00 mentioned in .that bond, be set aside and canceled. The answers filed below to the bill, and to the intervening petition, expressly stated that the deed from Whitlow to Ball, and the bond, executed back by Ball to Whitlow, constituted a mortgage for the security of an indebtedness, which existed from Whitlow to Ball and to the banking company of which Ball was a member. The issue, therefore, made by the pleadings below was not merely an issue as to the fraudulent character of the deed, but was also an issue as to the existence of an indebtedness from Whitlow to Ball that was secured by the deed and bond. It is often a serious question, whether a deed, and a bond for a deed executed by the grantee therein simultaneously with the deed, constitute a sale and re-sale, or merely a mortgage to secure an indebtedness. Here, the Appellate Court held that the deed and bond, executed at the same time, constituted a mortgage to secure a bona fide indebtedness from Whitlow to Ball. The judgment of the Appellate Court reversed the decree of the circuit court, and remanded the cause, in order that an account might be stated between Whitlow and Ball, so as to determine the amount of the indebtedness from Whitlow to Ball. This accounting was necessary, because the bill below prayed that the property might be sold under the execution in order to pay the judgment of the complainants therein, and the intervening petition prayed for a sale of the land, in order that thereby the judgments of the intervenors might be paid from the proceeds of such sale. Inasmuch as the indebtedness of Whitlow to Ball was held to be a prior lien upon the premises, it was necessary to ascertain that indebtedness by an accounting, in order to determine what surplus there would be for the payment of the judgments set up in the bill and the intervening petition. It is true, that no cross-bill was filed by Ball, asking for a foreclosure of his mortgage and the ascertainment of the amount due him by an accounting. But, under the circumstances, this was not necessary.. Where, under a bill to foreclose a mortgage, a subsequent mortgagee is made a party defendant, it is not necessary for such subsequent mortgagee to file a cross-bill. (Armstrong v. Warrington, 111 Ill. 431). Where a second mortgagee files a bill to foreclose, it is not necessary to make the holder of a prior mortgage a party defendant, but such prior encumbrancer, while not a necessary, is a proper party to the foreclosure suit; and where such prior mortgagee is a party, and all the holders of the different liens are before the court, the court will render a .decree providing for payment in the order of priority. (9 Ency. of PI. & Pr. pp. 327-331). Here, the four hundred and eighty acres of land in controversy were subject to mortgages, amounting to more than $21,000.00. Ball, held by the Appellate Court to be entitled to a prior lien to secure his indebtedness, was a party to the proceeding, and the present appellants as judgment creditors seeking to subject Whitlow’s equity of redemption to the payment of their judgments, were also parties. Under the circumstances it was proper and necessary, that the amount due to Ball from Whitlow should be ascertained. If the judgment rendered by the Appellate Court in the present case is a final judgment, then an order in a foreclosure suit, referring the cause to a master in chancery to ascertain the amount due upon the mortgage, is a final judgment. Here, under the holding of the Appellate Court, it could not be determined how much of the proceeds of the sale of the property, the sale of which was asked for by the complainants below and the intervening petitioners, should be appropriated to the payment of their judgments, until it was ascertained by an accounting how much of the proceeds of the sale should first be paid to Ball and to the bank, of which he was a partner or member. The question here is not whether the Appellate Court decided correctly in holding that the deed and bond for a deed together constituted a mortgage; and we pass no opinion upon this question. The only question, involved in the present motion to dismiss the appeal, is as to the character of the judgment, rendered by the Appellate Court, in respect to its being a final judgment, and in no way relates to the correctness of that judgment. In Gade v. Forest Glen Brick Co. supra, the Appellate Court affirmed a decree, winding up an insolvent corporation under section 25 of the Corporation act, except as to certain priorities and the validity of an attempted reduction of capital stock, in which latter respect the decree was reversed, with leave to amend the bill and fix stock liabilities on a different basis; and such judgment was there held not to be appealable to this court under section 90 of the Practice act, as being neither a simple affirmance, a final decree, a final judgment, nor a judgment which admitted no further proceedings. In that case, also, it was held that, where the particular mode of executing the decree of the court below is made by the judgment of the Appellate Court to depend upon the exercise of an option by the complainants in the lower court, the cause must go back to the lower court, because it is there only that the option so conferred can be exercised, and hence that the judgment is not of such a'character that it can be brought to this court by appeal or writ of error. So, in the case at bar, the Appellate Court reverses the judgment, and remands the cause to the' court below with directions to allow amendments to the pleadings, if desired. This language gives to the parties in the court below an option whether they shall amend their pleadings or not. That option can only be exercised in the circuit court. The proof tended to show, that Ball had paid certain portions of the mortgages, existing upon the four hundred and eighty acres of ground conveyed to him, and the amendments, referred to in the judgment of the Appellate Court, are amendments asking for a subrogation to the rights of the mortgagees, upon whose mortgages such payments were made. Without analyzing and stating the facts in all the decisions of this court upon this subject, we content ourselves with stating that the judgment of the Appellate Court in this case is not such a judgment, under the provisions of section 90 of the Practice act, as warrants an appeal therefrom to this court, as will be seen by reference to the following cases, to-wit: Gacd v. Forest Glen Brick Co. supra; Dreyer v. Goldy, 171 Ill. 434; Knapp, Stout & Co. v. Ross, 181 id. 392; Dickinson v. Linington, 168 id. 198; Partridge v. Stevens, 187 id. 383; Henning v. Eldridge, 146 id. 305; Fanning v. Rogerson, 142 id. 478; Amberg v. Bartlett, 190 id. 15; International Bank v. Jenkins, 109 id. 219; Ball v. Schaffer, 112 id. 341; Buck v. County of Hamilton, 99 id. 507; Anderson v. Fruitt, 108 id. 378; Trustees of Schools v. Potter, 108 id. 433; Green v. City of Springfield, 130 id. 515; City of Paxton v. Bogardus, 188 id. 72; McMahon v. Quinn, 140 id. 199; Bucklen v. City of Chicago, 166 id. 451. Hence, this appeal has been improperly brought from the Appellate Court to this court for the purpose of reviewing such judgment. An order will, accordingly, be entered dismissing the present appeal. Appeal dismissed.