Dean v. Gerlach

Per Guriam. A motion is made to dismiss the appeal for the alleged reason that the order setting aside the judgment entered by confession herein, is interlocutory and not final. The point, as we think, is well taken. After the judgment below was vacated by order of the court the cause then stood for trial the same as though an original suit had been instituted and the defendants duly in court. It was so held in Walker v. Oliver, 63 Ill. 199. But it is suggested by appellant’s attorney that appellees only entered an appearance in the court below limited to the purpose of the motion and not a full appearance in the case, so that when the judgment was vacated the court had reached the end of its power, and could not further proceed, and that therefore the judgment appealed from was final. We do not coincide with this view. We are of the opinion that they entered a full appearance. Theodore B. Gerlach, one of the defendants below, and one of the appellees here, entered -his appearance with an attempted reservation that it was only for the purposes of the motion, but at the same time filed an affidavit in support of his motion, grounded upon certain matters set forth in the affidavit which raised an issue of fact dehors the record. In substance it alleged among other things that the power of attorney was procured by false representations of the appellants made to appellees at the time of the execution of the notes and power of attorney, to the effect that the former would not take judgment on the notes by virtue of the power until after they became due according to their terms; and furthermore the affidavit alleged that certain material portions of the notes and power of attorney set forth therein, had been inserted without consent of appellees, which it was contended amounted to a material change of the instruments. Thus an issue of fact was presented to the court as a basis of relief. We are of the opinion that such a presentation of a material question of fact could not be made, and at the same time the defendants occupy the position of an amicus curios merely. One who seeks to occupy such a position must limit his appearance to a making of. suggestions to the court of alleged errors appearing on the face of the record, which the court may correct of itself without an investigation of fac.ts which are or may be disputed and which the party making the motion takes part in establishing. A party who appears and enters upon the trial of material facts requiring affidavits or witnesses for their proof can not be allowed the right to limit his appearance to a special purpose. The motion is therefore allowed and the appeal dismissed. Appeal dismissed.