Brownmark v. Livingston

Mr. Presiding Justice Windes delivered the opinion of the court. First it is claimed that the court had no jurisdiction, after the lapse of the term, to set aside the order dismissing the cause for want of prosecution, and therefore had no jurisdiction subsequently to proceed with the trial and the entry of the decree complained of. Ko objection appears to have been made to the order of the. court vacating the order of dismissal of the cause, nor to the action of the court in thereafter trying the cause. In fact, the plaintiffs in error participated in the trial and offered evidence in support of their defense without raising any question as to the jurisdiction of the court. This was- a waiver of the question of the court’s jurisdiction to try the cause. Herrington v. McCullom, 73 Ill. 476; Schaefer v. Moe, 72 Ill. App. 50, and cases cited. As will be seen from the statement preceding this opinion, the bill, among other things, alleges in substance that the complainants had a lien by virtue of said trust deed on said lot six, and that there was erected thereon a two-storv brick building, and “ that the said building, as well as all the walls thereof, are built wholly upon said premises above described.” This is a material allegation of the bill, which is denied by the answers; and whether or not the west wall of the said building was upon lot six,'conveyed by the trust deed, or was upon said lot seven, was the real and crucial point in controversy in the case. That plaintiff in error Brownmark was the owner of said lot seven, and that Barney Cohn and wife, the grantors of the trustee Straus, were the owners of said lot six, was not questioned. The question was as to the true boundary line between the lots. The defendants in error offered no evidence whatever upon this point, and the learned chancellor excluded evidence of plaintiffs in error which was offered to prove the true boundary line between the lots and the location of said west wall with reference thereto. The rendition of the decree, without proof upon this point, and the exclusion of the offered evidence of plaintiffs in error in that regard, was, in our opinion, fatal error. It is contended by counsel for defendants in error, in substance, that this was a question which should have been determined in the ejectment suit, to which their clients were not parties, and not being parties, would not be bound by the judgment therein. To state the point in another form, it is, in effect, that defendants in error, complainants in the bill, having come into a court of equity, the plaintiffs in error and defendants to the bill will not be heard to make a defense in equity, because they should have had the matter determined at law in an ejectment suit in which complainants were made parties. A mere statement of the proposition is sufficient to show its lack of soundness in law and reason. It is equivalent to saying, we filed our bill in equity, in a court of conscience, where the defendants will not be heard to make a defense because they should have first established it at law. The principle that one must first seek his remedy at law, applies to the complainant in equity, not to the defendant. We refrain from a review of the authorities cited in support of counsel’s claim. It seems sufficient to say that they have no application to the facts of this case. We think the contention of counsel for defendant in error, that a judgment in the ejectment suit against Cohn, to -which they were not parties, and of which Livingston was not notified until after the judgment wras rendered, and the chancellor might have found from the evidence Straus was not notified until after the judgment, would in no way bind them under the present statute of ejectment, Secs. 6 and 7. South Park Comrs. v. Gavin, 139 Ill. 280-6. Their contention, however, that legal titles can not be tried in a court of equity, is not sound, as applied to the facts of this case. An appeal was taken from the decree in this case to the Supreme Court, and was there dismissed, the court holding that a freehold was not involved. The court say (Brownmark v. Livingston, 190 Ill. 412): “ It is conceded Cohn is the owner of lot six and Brown-mark of lot seven. The only controverted question is whether or not a portion of lot seven is occupied by Cohn’s building. A determination of that question does not involve a question of title or ownership, but depends solely upon a determination of the location of the true boundary line between said lots.” As to the further points made by plaintiffs in error, it seems sufficient to say that Cohn and wife, being interested in the event of the suit, were proper if not necessary parties; that all proper evidence tending to establish the boundary line between the parties should be admitted and considered, and that under the allegations of the bill, a court of equity has jurisdiction. The decree for injunction should not, in any event, extend beyond the life of the lien of complainants’ trust deed. When that lien is discharged, so far as concerns the rights of the present complainants, the injunction should end. The decree of the Circuit Court is reversed and the cause remanded.