Sanche v. Mahler

Mr. Justice Ricks delivered the opinion of the court: Defendants in error have raised the question of jurisdiction of this court to consider the cause upon its merits, for the reason that the judgment of the Appellate Court is not a final judgment. The decree of the trial court consisted of two parts, namely, awarding a perpetual injunction and providing for an accounting. The Appellate Court sustained the injunction, but held the accounting in abeyance until, on further investigation, it should be made to appear that in commencing this suit plaintiff in error has not been guilty of laches, and reversing the decree and remanding the cause with directions. That part of the judgment of the Appellate Court in reference to the remanding order is as follows: “Therefore it is considered by the court that for that error, and others in the record and proceedings aforesaid, the decree of the circuit court of Cook county in this behalf rendered be reversed, annulled, set aside and wholly for nothing esteemed, and that this cause be remanded to the circuit court of Cook county, with directions to that court to allow complainant to amend his bill, and for further proceedings not inconsistent with the views expressed in the opinion of this court this day filed herein.” The judgment, as will be seen, is to proceed in accordance with the opinion of the Appellate Court. In the opinion of the Appellate Court it was said that in so far as the decree awarding a perpetual injunction is concerned it is sustained, and so far as that part of the judgment of the Appellate Court is concerned it cannot be reviewed upon this writ of error for the reason that it is in favor of the plaintiff in error. The only part reviewable in this court would be that part of the judgment reversing and remanding which provides for an amendment and accounting; and so far as this part of the judgment is concerned it cannot be held to be a final judgment, from which a writ of error could be sued out or appeal prosecuted. The rule in - reference to prosecuting appeals and writs of error from judgments of the Appellate Court is properly stated in Hagemann v. Hagemann, 188 Ill. 363, wherein it is said: “The judgments of the Appellate Court from which appeals maybe taken to this court are of three classes: First, judgments affirming the judgments, orders or decrees of the inferior court; second, judgments entering final judgments in the Appellate Court; and third, judgments reversing -the judgments, orders or decrees of the inferior court and remanding the cause with .such directions to the inferior court as that no further proceedings can be had or taken in the trial court except to carry' into effect the mandate of the Appellate Court.” The plaintiff in error relies upon the case of Blackaby v. Blackaby, 189 Ill. 342, (first reported in 185 Ill. 94,) to sustain his position as to the right of writ of error. This case is not similar to that case. There, the appellant, John Blackaby, was in possession of certain lands, and the appellees claimed to be tenants in common with him and brought their suit for partition and accounting. A decree was entered finding that the parties were tenants in common and that the appellees were entitled to partition. The chancellor, without referring the cause, erroneously disposed of the question of accounting between the parties. John Blackaby prosecuted an appeal from that decree to this court, and we reversed the decree of the lower court and remanded the cause “with directions to proceed in accordance with the views expressed in the opinion filed in this cause,” which is almost identical with the language of the remanding order in the case at bar. In the Blackaby case we pointed out in our opinion and expressed the view that the evidence was sufficient to warrant the decree for partition, but that the court, in passing upon the question of accounting without a reference to the master to state the account, committed error, and for that reason remanded the cause to the circuit court. (Blackaby v. Blackaby, 185 Ill. 94.) After the cause was remanded to the circuit court John Blackaby insisted upon offering evidence going to the question of partition and ownership of the land, and insisted that the cause was open for all purposes. His contention was denied by the chancellor, and on appeal to this court we held that the decree was final as to the question of partition, and that the only open question was the one relating to the accounting. It will be noticed that in that case that part of the decree that was.made final on the first hearing by this court was against John Blackaby, who both times brought the record to this court. In the case at bar, however, as we have already said, so much of the decree as was made final by the mandate and opinion of the Appellate Court was in favor of the plaintiff in error, and he could not and does not complain of that here upon this writ. The question of the injunction and of the accounting are sever-able, and we can see no reason for holding that plaintiff in error can predicate his writ of error on a final judgment of which he does not complain, and ask to have alleged errors as to that part of the judgment that is not final reviewed by us. We are clear that the judgment of the Appellate Court, in so far as it relates to the question of accounting, is not a final judgment, and that a writ of error does not lie in this court. The writ of error will accordingly be dismissed. Writ dismissed.