Finkelstein v. Lyon

Mr. Justice Baker delivered the opinion of the court. The contention of the plaintiff in the judgment is, that after the appeal was perfected by the filing and approval of the appeal bond, the Superior Court had no jurisdiction to vacate the order approving the appeal- bond or to vacate the judgment, or to grant a new trial; that all orders made in the cause after the approval of' the appeal bond must be held void and the judgment of July 15 held to be a final judgment. In this contention we are unable to concur. Conceding that so long as the order approving the appeal bond remained in force, the Superior Court was without jurisdiction to vacate the judgment and grant a new trial, the question remains whether, where a motion to vacate the order approving the appeal bond was made at the judgment term and continued, that court ha.d authority to vacate the order approving the bond. That it had such jurisdiction was held in Briggs v. Dunne, 163 Ill. 36. In the opinion in that case it was said: “If the court has the power to vacate a judgment or decree during the term, it is plain that the order vacating the judgment approving the bond was one within the jurisdiction of the court, and after that order was entered appellant’s appeal was at an end.” But it is not necessary in this case to decide that the decision of the Superior Court that it had authority to vacate the order approving the appeal bond was correct. It is enough that it had jurisdiction to decide that question. Whether its conclusion that it had such jurisdiction is erroneous is a question not brought before us for review on the transcript now before us, for the reason that the record shows no final judgment from which an appeal or writ of error will lie. Domitski v. Amer. Linseed Co., 221 Ill. 161; Walker v. Oliver, 63 Ill. 199 ; Roseland Manfg. Co. v. Arcan, 55 Ill. App. 336. The motion to vacate the order, striking the transcript from the files and to dismiss the appeal with damages, will be denied. Motion denied.