Price v. Springer

Mr. Justice Carter delivered the opinion of the court: Robert M. Boyd died intestate in 1895. At the time of his death he and his wife, Nancy A. Boyd, were tenants in common of the^ north-east quarter of the south-east quarter of section 6, township 5, north, range 12, west, in Crawford county. On August 12, 1904, Nancy A. Boyd, by warranty deed, conveyed her undivided one-half interest in the above described land to Francis M. Price for the consideration of $500. Price, with others interested, filed a bill for partition, making the widow and such heirs of Robert M. Boyd as were not complainants, defendants. At the March term, 1906, of the Crawford county circuit court, a decree was entered finding Price to be the owner of one-half and the heirs of Robert M. Boyd to be the owners of the other half of said land, the latter interests subject to the dower of Nancy A. Boyd. Commissioners were appointed to make partition, and submitted their report at the following September term. Some of the Boyd heirs filed exceptions to the report of the commissioners. These exceptions were overruled and are not,involved in this appeal. December 16, 1906, Allen W. Mann filed an intervening petition, claiming to be the equitable owner of an undivided half of that portion of the premises set off to Price, and praying to be made a party defendant and for leave to answer. Afterwards, at the same term, on January 7, 1907, by leave of court, Mann filed an amended intervening petition, in which he set out more in detail the nature of his claim. By this amended petition Mann alleged that he furnished the entire purchase moiley paid to Mrs. Boyd for the land, and that there was an agreement between petitioner and Price that Price re-pay petitioner one-half of such purchase money, and that Price would take the title in his name and hold it for the benefit of petitioner and Price, and the prayer of the petition was that upon the final hearing petitioner’s interest in said real estate, being the undivided one-fourth interest, be set off and allotted to him, “to the end that his interest in said real estate may be adjudged and determined by this honorable court,” and that petitioner be made a party defendant and allowed to answer the complainant’s bill of complaint, and for further relief. Price answered the amended petition, denying specifically all of its material averments. By his answer he averred that he and Mann were engaged in buying and shipping live stock for their joint benefit; that in paying Mrs. Boyd for the land he used partnership money, .but that afterwards an accounting was had, and he gave to Mann a note, pleading a tender of the full amount due Mann thereon. He denied any agreement or understanding that Mann was to be in any way interested in the purchase of Mrs. Boyd’s interest and denied the right of Mann to intervene and be made a party. After a replication was filed and Price had amended his answer and the issues were joined between Price and Mann a hearing was had, and on February 27, 1907, a decree was entered setting forth, among other things, that “the court- having heard all of the evidence and argument of counsel and being fully satisfied in the premises, finds that the said Allen W. Mann is the owner of an equitable, undivided one-fourth interest in the north-east quarter of the south-east quarter of section 6, of township 5, north of range 12, west, situated in the county of Crawford, State of Illinois, the same being the land sought to be partitioned in this case, and that said Allen W. Mann is a necessary party to this suit. It is therefore adjudged and decreed that the prayer of this intervening petition be granted. It is further ordered and decreed that the report of the commissioners, and the order appointing the commissioners, and the decree heretofore rendered in this cause, are set aside and vacated. It is further ordered and decreed that said Allen W. Mann be and is hereby made a party defendant to the original bill in this cause, and that said Allen W. Mann be and is hereby given leave to answer said original bills of complaint.” In pursuance of the decree above recited, Mann filed an answer to the original and amended bills March 4, 1907, in which, among other things, he alleged that he was the equitable owner of an undivided one-fourth interest, as set forth in the intervening petition. In this answer he did not allege that the decree of February 27 was final or claim that it in any way settled the rights of Price and himself. Price excepted to this answer. June 27, 1907, Mann filed an amended answer, in which for the first time he set up the fact that said decree of February 27 was a final decree and settled his and Price’s interests. On the same day he filed a cross-bill setting up substantially the same facts as in his amended answer of that date. November 15, 1907, counsel for Price filed a petition to modify said decree of February 27, 1907, by striking out that part of the decree which found that said Allen W. Mann was the owner of an equitable one-fourth interest in said property, and alleged that that part of the decree was inadvertently written in by the trial judge on his docket. After a hearing on this motion it was overruled by the court on April 10, 1908. Several other pleadings were filed, which are unnecessary to be considered on the issues here before us. After the issues were finally joined a hearing was had, and December 10, 1908, a final decree was entered, from which this appeal was prayed and allowed to this court. By this decree it was found that the interests of the parties were the same as found in the original decree, except as to one interest which had been conveyed in the meantime, and the interest of F. M. Price, which was held to be only one-fourth instead of one-half, as found in the original decree. Upon this hearing the court held that the question whether Mann was entitled to an undivided one-fourth interest had been determined by the hearing of the intervening petition and the decree of February 27, 1907, and that Price was concluded from re-litigating that question on the final hearing, and refused to permit Price to introduce evidence disputing Mann’s interest, on the ground that that question had already been adjudicated. It is manifest from this record that the decree, when entered, was not thought to be final by the parties to this litigation. Even considering the decree alone, the conclusion should fairly be reached that it was interlocutory and not final. Phis conclusion, we think, is inevitable when the decree is considered in connection with the other pleadings in the case. Neither the original nor the amended intervening petition would indicate that the appellee, Mann, expected to have a final hearing as to his interests until after he was permitted to answer. His first answer, filed March 4, 1907, after said decree of February 27, 1907, was entered, cannot be consistently construed in any other manner. Without question, at that time neither Mann nor his counsel understood that the said decree of February 27 was final. While said decree states that the court heard evidence, there is nothing in the record before us to indicate whether this was anything more than a formal finding by the decree. Whether this question was fully gone into does not appear. It is quite apparent from the pleadings and record in this cause that up to the time of filing the amended answer and cross-bill by Marin, on June 24, 1907, all parties were proceeding with the litigation as if the final hearing on the question as to whether Mann was the owner of a one-fourth equitable interest in said property was still to be heard and decided. It is impractical to lay down any rule which will be applicable to every case, so as to separate into classes those orders which are final and appealable and those which are only interlocutory. The courts are often called upon to exercise judgment in a given case and decide whether or not an order is final or interlocutory from the peculiar circumstances of that case. (Camden and Amboy Railroad Co. v. Stewart, 21 N. J. Eq. 484; 2 Beach on Modern Equity Practice, sec. 938.) We have no doubt on this record that the order of February 27, 1907, was interlocutory, even though that part of its finding be given full force which stated that Allen W. Mann is “the owner of the equitable undivided one-fourth interest” in the said property. It was the duty of the trial court to hear the evidence on this issue on the final hearing of this cause. While that part of said decree of February 27, 1907, might, by itself alone, be considered final, we think; the entire decree and the records in this case are of such a nature that that part of said decree can be modified, if necessary, under the rule that prevails in this State that until a final decree all previously rendered decretal orders are before the court for review and may be altered, modified or vacated, as the circumstances may require. Hawkins v. Taber, 47 Ill. 459; Jeffery v. Robbins, 167 id. 375; Gibson v. Rees, 50 id. 383. As this case must be heard in the trial court on the merits, it would be improper for us to express our views on the questions' discussed in the briefs as to the trust relations between Mann and Price in the property here in question. For the error in not permitting appellant to introduce the evidence in question, the final decree of December 10, 1908, in this cause must be reversed and the cause remanded to the circuit court for further proceedings in accordance with the views herein expressed. Reversed and remanded.