Pasfield v. Baumann

Mr. Justice Stone delivered the opinion of the court: Appellees filed their bill in the circuit court of Sangamon county to restrain the city of Springfield and its officials from issuing and selling its bonds to meet the cost of constructing an enlarged municipal electric light and power plant. The amended bill charged certain defects in the ordinance passed by the city council of the city of Springfield and charged that the ordinance is void because based upon an act of the legislature known as the Municipal Ownership act, which, it is averred, is unconstitutional and void. The bill also alleged that the proposed bond issue would create an indebtedness of the city in excess of its constitutional limit. The answer as amended denies the averments with reference to the validity of the ordinance contained in the bill and amended bill and denies that the proposed bond issue would create an indebtedness in excess of the constitutional limit; alleges bad faith on the part of complainants; sets forth the passage of the ordinance of April 19, 1920, and avers that the city does not propose to issue the bonds until the city council shall provide for the execution, negotiation and sale of such bonds and for the levy of a tax to pay for the same. Complainant's filed exceptions, alleging that the answer was insufficient, impertinent and raised questions of law and did not answer the bill. The chancellor sustained these exceptions to the answer and amended answer, and thereupon, without further pleadings on the part of either party or a rule on defendants to further answer, entered a decree awarding the injunction. This decree finds that the amended bill of complaint states a cause of action; that the answer and amended answer admit all the material allegations of the amended bill “except as traversedthat so far as the answers raised questions of fact by traverse, said questions of fact are not now material -to the decision of the case; that the exceptions of the complainants to the answers of the defendants go to the materiality and sufficiency of the answers and raise the question whether the answers present a defense to complainants’ amended bill of complaint. The decree thereupon finds that the complainants are entitled to the relief prayed and that the answer and amended answer state no defense, and awards the injunction. The case comes to this court on appeal from this decree. The, assignments of error are as to the ruling of the chancellor in sustaining the exceptions to the answers; that the decree entered by the trial court was premature, as section 24 of the Chancery act precludes the entry of a final decree upon disposition of the exceptions;° and that the decree was erroneous. It is evident from an examination of the decree that it was entered upon the effect of the pleadings. Section 24 of the Chancery act provides that when an answer shall be adjudged insufficient the defendant shall file further answer within such time as the court shall direct and on failure thereof the bill shall be taken as confessed, and if such further answer shall be likewise adjudged insufficient the defendant shall file a supplemental answer and pay all costs thereon. Here there was no rule entered against the defendants to answer after sustaining the exceptions to the answer and amended answer, and the Chancery act does not authorize the entry of a decree prior to a rule on defendants to make further answer. ■ Counsel for appellees urge that notwithstanding such error the cause should be decided on its merits. Such a course is desirable where it can be done without violating imperative language of the statute or established rules of law. We, however, can look only to the record as made by the parties. (Farmer v. Fowler, 288 Ill. 494.) The question involved in the case as made by the record raises a question of chancery practice. It has long been the rule in this State that a decree entered on allowing exceptions to an answer without ruling the defendant to further answer is premature. This identical question arose in Holly v. Powell, 63 Ill. 139, where it is said: “The statute is imperative. If an answer is adjudged insufficient on exceptions filed, the defendant must be ruled to answer further.before the cause can be set down for a hearing.” It is in that case held, under facts almost identical with those in the instant case, that the decree was premature. This rule is not without its reason, based on principles of justice. A defendant may have a defense which has not been well put, thereby causing exceptions filed to his answer to be sustained, and to hold that a chancellor has authority, under the law, to enter a decree on sustaining exceptions, without further rule on the defendant to answer, would be to deprive such defendant of his right to be heard. Nor does this rule cause indefinite delay in bringing chancery cases to an issue. The rule to answer is to answer to the part to which exceptions are sustained, and section 24 of the Chancery act provides that where there is a failure to do this the defendant may be proceeded against for contempt. For error on the .part of the chancellor in entering the decree prematurely'the same is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.