Brodhead v. Minges

Hr. Justice Wilkin delivered the opinion of the court: The only question presented for our decision is, did the Appellate Court err in its judgment dismissing the appeal to that court? We entertain no doubt that its decision is in conformity with the decisions of this court in holding that the decree below was not a final one. It will be seen from the foregoing statement that the last order entered in the cause is not only not a final decree in a foreclosure proceeding, but is interlocutory and leaves the case undisposed of, and also leaves the time as to when it will be again taken up for final disposition unsettled, to be determined upon whether or not the burnt records proceeding therein mentioned shall be delayed by the solicitors for the complainant, or whether this court shall, in the judgment of the chancellor, unduly delay its final decision. We express no opinion as to the correctness of the findings of the chancellor, nor do we now pass upon the propriety of that order, but simply hold that it is not a final disposition of the case. Section 68 of the Practice act allows appeals from and writs of error to the superior court of Cook county from “all final judgments, orders and decrees,” (8 Starr & Cur. Stat. 1896, p. 3094,) and we have often held that until a final judgment or decree is entered in the court below no appeal or writ of error can be prosecuted. (Coates v. Cunningham, 80 Ill. 467, and cases there cited; Tolman v. Jones, 114 id. 147; Farson v. Gorham, 117 id. 137.) We think it equally clear that under the decisions cited in the opinion of the Appellate Court by Sears, J., the order set out in this record is interlocutory. Grant v. Phœnix Co. 106 U. S. 429, is directly in point. It is true that exceptions may arise to the general rule that appeals and writs of error will only lie from a final decree or judgment, as in Crouch v. First Nat. Bank, 156 Ill. 338. There the object of the appeal was to secure a general fund in the hands of receivers for- the mutual benefit of the creditors of the alleged limited partnership, by having certain preferences set aside, and the amount of the fund could only be ascertained by a determination of the issues as to the appellee bank. Or as in Blake v. Blake, 80 Ill. 523, where it was held that an appeal would lie from an order made in a divorce proceeding for the payment of attorneys’ fees and expenses by the husband, and subjecting him to imprisonment for failing to pay his wife provisional alimony previously ordered, on the ground that the order appealed from would occasion the husband to be deprived of his property or endanger his liberty. We are unable to see how this case can be brought within any such exception. Suppose the Appellate Court had refused to dismiss the appeal and had affirmed the decree of the court below. The effect would have been to allow parties to have decrees and orders of the circuit and superior courts reviewed by piecemeal, which we have held may not be done. (Sholty v. Sholty, 140 Ill. 81.) It is true, perhaps, that hardship may result to the complainants in the bill by the refusal of the court to make a final decree in the case; but conceding that to be true, it would furnish no excuse for an attempt to take an appeal from the interlocutory order, because to so hold would allow parties to abrogate the statute allowing appeals and writs of error only from final judgments whenever the action of the trial court might seem to them to impose unnecessary hardship or delay. If a judge should repeatedly refuse to make a final decision in a case, and so deprive a party of his legal rights, mandamus would seem to be the only proper remedy, — not to compel a decision in any particular way, but to compel a final decision. Whether or not the facts in the case would justify such a proceeding, however, need not be decided. The judgment of the Appellate Court dismissing the appeal will be affirmed. Judgment affirmed. Mr. Chief Justice Magruder took no part in the decision of this case.