Miller v. Kensil

Mr. Justice Carter delivered the opinion of the court: Appellant does not claim that the court below did not correctly find his interest in the property or decree to him his proper share in the proceeds of sale. His argument is, in effect, that the partition proceeding was improperly instituted and prosecuted to a decree of sale because another proceeding was pending for the partition of the same property. He insists that the court erred in striking from the files his plea in abatement setting up the pendency of the former suit. Even if appellant in his assignment of errors raised questions that involve a freehold he does not insist upon such questions in his brief and argument, hence they must be deemed waived. (Rhodes v. Rhodes, 172 Ill. 187.) Without doubt a freehold was involved in the partition suit, but counsel do not claim that the decree is erroneous on account of “the fact that the rights, titles and interests of the parties were as therein determined. * * * The rule is, that although a freehold may have been involved in the suit, and in the decree therein rendered, yet if no objection is taken to that part of the decree relating to the freehold, an appeal from or writ of error that brings up another part of the same decree having no relation to the question of freehold will not lie to bring the record directly from the circuit to the Supreme Court.” (Malaer v. Hudgens, 130 Ill. 225; Moore v. Williams, 132 id. 591.) Appellant only urges a question of practice,—that the court improperly struck his plea in abatement from the files. When such questions only are raised the appeal should be taken to the Appellate Court. (Fread v. Fread, 165 Ill. 228.) The fact that a freehold has been involved in a suit does not determine the question of jurisdiction upon appeal. The freehold must not only be involved in the original decree but also in the questions to be determined on the appeal, in order that this court may have jurisdiction. Hutchinson v. Spoehr, 221 Ill. 312; Prouty v. Moss, 188 id. 84; In re Estate of Ross, 220 id. 142; Douglas Park Building Ass. v. Roberts, 218 id. 454; Franklin v. Loan and Investment Co. 152 id. 345. The question of another suit pending and as to whether the plea in abatement made upon that ground was properly stricken from the files is solely one of practice and does not involve a freehold. The appeal must therefore be dismissed for want of jurisdiction. • , J Appeal dismissed.