Pettyjohn v. Adams

Mr. Justice Worthington delivered the opinion of the court. Appellee moves to dismiss this appeal upon the ground that a freehold is involved. Appellants, Hulmán & Beggs, recovered a judgment against appellee and levied an execution and sold an undivided half interest in certain lots in St. Francisville, Ill., on which appellee resided and claimed as a homestead. On March 21, 1900, Richard Adams, Sr., filed a bill in the Circuit Court of Lawrence County for the May term, making William Pettyjohn, sherjff, and Hulmán and Beggs defendants, setting out the recovery of said judgment and proceedings thereunder, claiming that the said lots 39, 40, 41, 42, 43, 44, 45 and 46, in St. Francisville, were his homestead at the time of the recovery of said judgment, and had so continued a homestead, and were of less value than $1,000, and therefore the judgment was no lien and the execution could not legally be levied thereon, and asking that the said sheriff and Hulmán & Beggs be restrained from proceeding further against said lots, and that the execution, levy and certificate of sale be canceled and held of no effect as a cloud on complainant’s title, and that the property be declared the homestead of complainant. Upon hearing the court found for complainant, decreed the property the homestead of complainant and set aside and vacated all the proceedings under the execution, from which finding this appeal is prosecuted. A homestead is a freehold estate. Stodalka v. Novotny, 144 Ill. 125; Magoon v. Magoon et al., 15 Ill. App. 629. A freehold is involved when the. necessary result of the decree is that one party gains and the other loses a homestead. Ducker v. Wear et al., 145 Ill. 654. A freehold is involved where the title is so put in issue by the pleadings that the decision of the case necessarily involves the issue of losing or gaining a homestead. Goodkind v. Bartlett, 136 Ill. 18. The pleadings in this case present directly the issue of a homestead. . The appeal should have been taken to the Supreme Court, and is therefore dismissed with leave to appellants to withdraw the record and papers filed in this court. Appeal dismissed.