Cahill v. Welch

Mr. Chief Justice Hand delivered the opini.on of the court: The appellee has entered a motion in this court to dismiss the appeal on the ground that the suit was voluntarily dismissed by the appellant, which has been reserved. An order dissolving'an injunction is interlocutory, and not final, and an appeal does not lie from such order; (Knapp v. Marshall, 26 Ill. 63; Weaver v. Poyer, 70 id. 567; Williams v. Chicago Exhibition Co. 188 id. 19;) but where the sole object of a bill is to obtain an injunction, and a demurrer is filed or a motion is made to dissolve the injunction upon the face of the bill, and the injunction is dissolved because the facts stated in the bill, when-admitted to be true, are not sufficient, in law, to authorize an injunction to issue, the suit is virtually at an end, and the court, or the complainant, "may dismiss the bill, and an appeal or writ of error will lie from such decree. (Titus v. Mabee, 25 Ill. 232; Weaver v. Poyer, supra; Prout v. Lomer, 79 Ill. 331; Williams v. Chicago Exhibition Co. supra; Goddard v. Chicago and Northwestern Railway Co. 202 Ill. 362.) That, however, is not the rule when other relief is sought by the bill, or wh.en an answer has been filed and the court dissolves the injunction upon a consideration of the facts set up in the answer. (Beams v. Denham, 2 Scam. 58; Titus v. Mabee, supra; Weaver v. Poyer, supra; Prout v. Lomer, supra; Williams v. Chicago Exhibition Co. supra; Goddard v. Chicago and Northwestern Railway Co. supra.) In that state of case the court should retain the bill and enter such decree as the law and the facts may require after final hearing. The appellant, by her bill, sought to have the court decree that she was entitled to the possession of the premises during her natural life, and to have the decree foreclosing said mortgage set aside as null and void as to her, as a cloud upon her title. The injunction prayed for in the bill was incidental only to the principal objects of the bill, and an answer having been filed by the appellee denying all the facts upon which the relief prayed for was predicated, the court could not "determine such facts and dispose of the entire subject matter except upon final hearing. The order dissolving the injunction was interlocutory, and when the appellant, after that order was entered, dismissed her bill, the suit, by her own act, was terminated, and she having- voluntarily ended the litigation, an appeal by her to review the record made in the progress of the suit will not lie. The appeal will therefore be dismissed. Appeal dismissed.