Howison v. Ruprecht

Mr. Justice Adams delivered the opinion of the court. Appellant’s counsel contend that the cross-bill of appellant was filed in apt time, that the court had jurisdiction to entertain and pass on it, and, consequently, that the striking it from the files was error. The decree of the Circuit Court, July 14, 1899, which was affirmed by the Supreme Court in June, 1901, disposed of all issues made in the cause at the time of the entry of that decree. The cross-bill of appellant was filed February 27, 1904, nearly five years after the entry of the decree. In Beauchamp v. Putnam, 34 Ill. 381, the defendant, at the hearing, asked leave to file a cross-bill, which was refused. The court say: “A defendant desiring to file a cross-bill should do so without delay, and have the same at issue, if practicable, so as to be heard with the original bill. If he desires any further time, he must* seek it as a matter of indulgence. The court is not required, at the hearing of the original cause, to order the defendants to a cross-bill to plead, answer or demur instanter. It may give time for answering, and postpone the hearing until the answer comes in; or it may give time, and proceed with the hearing. The complainant in the cross-cause must have it ready to be heard when the original cause, comes on for a hearing,, or procure a stay of proceedings, if he desires that the two causes shall be heard together.” In Fread v. Fread, 165 Ill. 228, after hearing and decree, the defendant petitioned the court for leave to file a cross-bill, and the court denied the petition; notwithstanding which she subsequently filed a cross-bill, which the court, on motion, struck from the files. The court say: “The • filing of a cross-bill is a matter of right and requires no leave of court, but it -should be filed in proper time. (1, Starr & Curtis’ Stat., p. 407, sec. 30; Beauchamp v. Putnam, supra; Davis v. American and Foreign Christian Union, 100 Ill. 313; 3 Daniell’s Ch. Pr. sec. 1745; Story’s Eq. Pl. sec. 395. See also, 5 Ency. of Pl. & Pr. 653, and collection of cases there noted.) And it does not follow that because a defendant to a bill has the right to file a cross-bill he may do so after hearing and decree, and thus call in question matters which, but for such cross-bill, would be concluded by such decree.” In Bronson v. LaCrosse & M. R’d Co., 2 Black (U. S.), 524-532, the court, Hr. Justice Davis delivering the opinion, say: “It is proper to say, that we do not approve of the practice of filing a cross-bill after the original suit has been heard and its merits passed on. If any of the defendants in the suit wished to have the equities between themselves settled without instituting an original suit for that purpose, they should have applied to the court at an earlier stage of the litigation, and not waited until the pleadings were perfected, proofs taken and the cause, after two years of delay, ready for hearing.” There are other cases to the same effect. The cases cited are such that the court had jurisdiction and control of the cause when the question arose as to the right to file a cross-bill; but the court, in this case, had no jurisdiction of the original cause of Robinson et al. v. Ruprecht et al., in which appellant’s cross-bill was filed after the end of the term at which the decree was rendered. But appellant’s counsel contend that the court having appointed a receiver, and the receiver not having been discharged, the court had jurisdiction to allow the cross-bill to be filed. The record before us is certified to be per praecipe, and it contains no order appointing a receiver. The record, however, contains numerous orders in respect to a receiver’s actings and doings, and approvals of his reports, of dates subsequent to July 14, 1899, when the decree was entered, and, in considering appellant’s contention, we will assume that a receiver was regularly appointed. In High on Receivers, 3rd ed., sec. 833, the authtir says: “The functions of a receiver usually terminate with the termination of the litigation in which he was appointed. And when the bill upon which the appointment was made is afterward dismissed upon demurrer, the duties of the receiver cease as between the parties to the action. So when defendant in the action in which the receiver was appointed finally obtains judgment therein in his favor, the entry of judgment would seem to have the effect of terminating the receiver’s functions, although plaintiff in the action perfects his appeal to an appellate court. It is to be observed, however, that the abatement of the action, or the entry of final judgment therein, does not have the effect of discharging the receiver ipso facto. And although as between the parties to the litigation his functions have terminated with the determination of the suit, he is still amenable to the court as its officer until he has complied with its directions as to the disposal of the funds which he has received during the course of his receivership.” In Field v. Jones, 11 Gra., 415, the court say: “The bill, by virtue of which Mr. Schley was appointed receiver and came into the possession of this fund, was dismissed upon demurrer—the legal consequence of which was to dispense with the functions of the receiver as a depository of the parties litigant. His duties ceased with the termination of the litigation between the parties to the bill, and that ceased when it went out of court upon the demurrer. But his relations to the court of chancery from which he received his appointment did not determine—his amenability to that court as receiver continued. That is to say, he was still an officer of the court. His possession of the fund was the possession of the court. Both he and it were subject to the order of the court.” To the same effect is Hickox v. Holladay, 12 Sawyer’s U. S. C’t R. 204, 217. The court, after the dismissal of the original bill, and after the term at which the final decree was entered had expired, had no jurisdiction to entertain a cross-bill and rule the original complainants, defendants to the cross-bill, to answer it. In the present case the appellant caused a summons to be issued for and served on Frank H. Euprecht, a defendant to the cross-hill, who was not before the court as a party to the original bill or original cross-bill, assuming that such original parties were still in court, as, clearly, they were not. The original bill had been dismissed nearly five years before the cross-bill was filed; the complainants had taken their departure from the forum, and the court 'had no more jurisdiction over them than had they never been before it, except, perhaps, to enforce an injunction against them contained in the decree. Also, the rights of appellant, in issue by the prior. pleadings, had been fully settled by the decree. Even if the term at which the decree was rendered had not ended, and the court had had jurisdiction of the persons of the litigants and of the subject-matter of the litigation, appellant could not have filed a cross-bill without leave of the court. Roberts v. Peavey, 9 Foster (29 N. H.), 393; Montgomery v. Olwell, 1 Tenn. Ch. 169. A cross-bill will not be permitted to be filed when there has been unreasonable delay. Baker v. Oil Tract Co., 7 W. Va. 454. . In Roberts v. Peavey, supra,, the defendant, after the cause had been decided, moved for leave to file a cross-bill. The court denied the motion, saying: “We have carefully examined the books within our reach, and the result to which we have arrived is, that it is too late to file such a cross-bill after a hearing, unless in those cases where the court finds itself unable to make a satisfactory decree without further facts than those which the parties have laid before them, when they may direct a cross-bill to be filed. The present is not a case of that kind.” We have examined the cases cited by appellees’ counsel, and do not consider them applicable in this case. A motion by appellees to affirm the order appealed from, because of insufficiency of the transcript, was reserved till the hearing, which, by reason of our conclusion, it is unnecessarv to pass oh. The order striking appellant’s cross-bill from the files will be affirmed. Affirmed.