Vose v. Northwestern L. & B. Ass'n

Mr. Justice Horton delivered the opinion of the court. Defendants in error moved this court to dismiss this cause on the ground that a freehold is involved, and that therefore this court is without jurisdiction. That motion was reserved to the hearing. It must now prevail. The statute provides, in substance, that this court shall not entertain jurisdiction in cases involving a freehold, and that in such cases an appeal shall lie directly to the Supreme Court. (Hurd’s Stat., Ch. 37, Sec. 25.) Whether a freehold is involved in a particular case has been frequently before the courts of this State. A freehold is involved where the primary object of the suit is the recovery of a freehold estate, the title whereof is directly put in issue, and where the suit, if prosecuted to a final determination, will, by virtue of the judgment or decree rendered therein, as between the parties, result in one gaining and the other losing the estate.” C., B. & Q. R. R. Co. v. Watson, 105 Ill. 217 222. That case has been frequently cited with approval, and the rule there stated may be considered as the settled law of this State. Van Meter v. Thomas, 153 Ill. 65; Howe v. Warren, 154 Ill. 227, 253. By reference to the record and files in the case of Vose v. Cratty (66 Ill. App. 472), we find that the order of September 17, 1896, now before this court upon this writ of error, was before the court in that case. Defendants in error in the former case moved this court to dismiss the same. In his suggestions filed in opposition to that motion, plaintiff in error, by his attorneys (the same attorneys appearing for him now), made the following statement, viz.: “ The order entered by the County Court in the Cratty petition was a final order. It disposed of all of Vose’s interest in the matter. He was divested of the title to the property which the assignment vested in him.” This being true, it can hardly be contended that a freehold is not involved in the case now before this court. The purpose, as well as the effect of sustaining the view of plaintiff in error, would be to divest the title of J amieson as receiver to real estate, and re-in vest the same in plaintiff in error. This court has no jurisdiction in this case. By the final order of this court in Vose v. Cratty, supra, the order removing plaintiff in error as assignee was reversed, but there was no remanding order. 14o supersedeas had been ordered or granted in that case. By reference to the. opinion of the court, we find this statement, viz.: “ But since the writ was sued out, all the creditors have been paid, all the property disposed of, and all proceedings in the County Court ended. There is no longer in that court anything to which a remand of this cause could attach.” The order, to reverse which this writ of error is prosecuted, was before the court in the Cratty case. Whether the Cratty case is res adjudicate/, as to- the plaintiff in error, and also whether this court has jurisdiction for the reason that plaintiff in error.had no standing in the County Court when this writ of error was sued out, may be doubted. But as the motion to dismiss for want of jurisdiction must be sustained because a freehold is involved, we do' not deem it necessary to determine the questions thus presented. The motion to dismiss the writ of error for want of jurisdiction because a freehold is involved, is sustained, and the writ dismissed.