Orvis v. Cole

Pillsbury, J. It is now insisted by the appellee, Cole, that the orders re-instating said cause, entered both in vacation and in term time, were void, for the reason that the term had passed at which it had been dismissed for want of prosecution. That many of the orders and proceedings had in this case were irregular can not well be doubted, but it is quite clear that the appellee is not in a position to avail himself of any error or irregularity of the court in this regard. The defendant, after the cause was re-instated in term time, and without any objection to such action of the court, applied for and obtained leave to withdraw his answer theretofore filed, for the purpose of interposing a demurrer, which could only have the effect of raising the question whether the complainant was entitled to any relief upon the facts alleged, and having taken this action, he must be held to have acquiesced in the action of the court in re-instating the cause. The dismissal of the cause for want of prosecution would not prevent the complainant from filing a new bill, setting up the same facts averred by her in her original and supplemental bill, and having this right, at the time the cause was re-instated, it would be very unjust to permit the defendant to obtain a decree dismissing the bill for want of equity, the effect of which decree might be difficult for the complainant to avoid if pleaded in bar to a new bill asking the same relief. Having treated the cause as still pending in the court below, he can not now be heard in this court to urge an affirmance of the decree dismissing the bill, upon sustaining the demurrer upon the ground that the cause was improperly re-instated. Herrington v. McCullum, 73 Ill. 476; McCarthy v. Neu, 91 Ill. 127; Miere v. Brush, 3 Scam. 21; Vasey v. Trustees, 59 Ill. 188. The case, then, at the time' the demurrer was filed and decision thereon rendered, was in the same condition as though it had never been dismissed for want of prosecution and the question is, whether there is any equity in the bill. The irregularity in filing the supplemental bill and the amendment to the original bill, if there be any, without leave of court had in term time, can not be taken advantage of by demurrer, but a motion should have been entered to strike it from the files. This not being done, where the cause was re-instated, such supplement and amendment became a part of the record, the same as though the cause had not been out of court. It had then been on file for several terms, and not being stricken from the files, was to be considered as a part of complainant’s bill, and the demurrer of the defendant went to that as well as the original bill. The bill shows that the complainant was the owner of a large part of the premises, and that the conveyance to Cole was but a mortgage and was so treated by him in his bill to foreclose. She not being a party to the foreclosure proceedings, it requires no citation of authorities to show that she is not affected by any decree rendered in said cause. Her equity of redemption "still subsists, and as she has offered to pay Cole the amount of the mortgage debt, which he refuses to receive, no reason is perceived why she is not entitled to the interposition of a court of equity in her behalf, and to have a decree for redemption upon paying the amount found due upon the mortgage, after the account shall be adjusted upon equitable principles. • To this extent, at least, if she sustains by proof the case made by her bill, she is entitled to relief. The motion of the complainant entered at the January term, 1883, to amend the bill, seems not to have been passed unon by the court,¿which is also assigned as error. It does not appear from the record, that any amendment was presented to the court showing in what manner it was proposed to amend, and we can not, therefore, say there was error in not disposing of the motion before acting upon the demurrer; and as to the motion made to file a supplemental bill not being determined by the court, no harm was done the complainant, as no leave of court is necessary to be obtained in order to bring to the attention of the court, by supplemental bill, material facts which have occurred since filing the original bill. For the error in sustaining the demurrer to the bill, the decree of the court will be reversed and the cause remanded, with leave to the complainant to amend her bill if she shall be so advised, and for such further proceedings in the cause as equity may require. Decree reversed.