Roby v. South Park Commissioners

Mr. Justice Dunn delivered the opinion of the court: The only error assigned is on the action of the court in sustaining the demurrer to the cross-bill and dismissing the cross-bill. The cause has been argued on the part of the plaintiff in error as if the cross-bill were an original bill and as if the only question to be determined were whether the cross-bill states such a case as entitles the complainant to some equitable relief. This is a misapprehension. The record shows that .after the cross-bill was dismissed the cause was submitted for final hearing upon the original, bill, (to which the plaintiff in error, having refused to join as complainant, was a defendant,), the answers- and replications and the evidence, and upon a determination of the issues of fact as well as of law the court entered a decree dismissing the bill for want of equity. That bill, so far as any right to equitable relief is concerned, Was substantially identical with the cross-bill. The allegations of the latter were made in some particulars with more fullness of detail, but in no material matter did they add anything of essential importance to the statements of the original bill. The cross-bill prayed for no relief not prayed for by the original bill, and, in fact, for no specific relief. Its prayer was merely a prayer for general equitable relief. The facts alleged showed no right to any other relief than that shown by the original bill. They showed nothing which could in any manner add to, change or qualify the relief to be given under the original bill. Under such circumstances the cross-bill was an unnecessary and improper encumbrance of the record, and the court might rightfully strike it from the files or sustain a demurrer to it. A cross-bill is a mode of defense. Where it is necessary for a defendant to have relief concerning the subject matter of the litigation different from that sought by the complainants, where it is necessary to the defense to obtain some discovery or where facts occurring subsequently to the filing of an answer are material to the defense, a cross-bill is the proper method of bringing these matters to the attention of the court. It is only where complete justice can not be done on the original bill and answer that a cross-bill is proper. If the same matter is equally available by way of answer the cross-bill is unnecessary. In Newberry v. Blatchford, 106 Ill. 584, the Attorney General, who was a defendant, filed an answer substantially admitting the allegations of the bill and a cross-bill asking the same relief as the original bill. It was held that the cross-bill was filed in violation of the well established chancery practice. The court said (p. 599) : “The cross-bill in this case was for no purpose the law permits such a bill to be used. No discovery was sought and no relief was asked that was not attainable, if at all, on his answer. This is stating no new rule of practice. It was decided by this court as long ago in Morgan v. Smith, 11 Ill. 194, a defendant will not be permitted to file a cross-bill when his rights are fully disclosed in his answer in response to the allegations of the bill and might be fully protected by the court on the hearing of the original .bill, and the cross-bill of the defendant was held to have been properly stricken out of the record because it was in violation of proper practice. * * * It is not understood the practice in chancery will-permit a defendant to file a cross-bill praying the same thing may be done as is sought to be accomplished by the original bill. A demurrer would lie to such a cross-bill, or it might be dismissed on motion, as was done in Morgan v. Smith.” The same rule is announced in Wing v. Goodman, 75 Ill. 159; Akin v. Cassiday, 105 id. 22; Hook v. Richeson, 115 id. 431; Prichard v. Littlejohn, 128 id. 123. Though the interest of the plaintiff in error was identical with that of the complainant he refused to join in the bill and was therefore properly joined as a defendant. (Smith v. Sackett, 5 Gilm. 534; Whitney v. Mayo, 15 Ill. 251.) If in his judgment the bill failed to set out the facts with sufficient fullness or accuracy he could have supplied the defects by his answer. He had the right, on the hearing, to introduce evidence, and if, upon the hearing, relief had been granted to the complainant, the plaintiff in error would necessarily have received the same relief. The presence of the National Transit Company was not necessary to the relief sought. It had no interest in the controversy. It had parted with its interest in the land. The allegations of' the cross-bill show that the only persons having any interest in the land were Roby, Charles W. Colehour, Carrie M. Colehour, the South Park Commissioners, Potwin and Harris. These were all parties to the original bill, and the presence of no one else was necessary to an adjudication of all questions concerning the title. The demurrer to the cross-bill was properly sustained, and the decree will be affirmed. Decreg