Schmidt v. Schmidt, 209 Ill. App. 146 (1917)

Dec. 17, 1917 · Illinois Appellate Court · Gen. No. 23,371
209 Ill. App. 146
Fred Schmidt et al., Appellants, v. Edward Schmidt, Individually and as Executor, Appellee

Fred Schmidt et al., Appellants, v. Edward Schmidt, Individually and as Executor, Appellee.

Gen. No. 23,371.

1. Appeal and bbbob, § 178 * —when freehold is involved. In a partition suit a freehold is involved, and an appeal from .the trial court must he taken directly to the Supreme Court and not to the Appellate Court.

2. Appeal and bbbob, § .1140*—when leave granted to withdraw record, abstract and briefs in suit improperly brought to Appellate Gomrt. Where an appeal in a partition suit, involving a freehold, is taken to the Supreme Court and an appeal bond given conditioned upon the affirmance of the judgment in the Supreme Court, but for some reason unknown the record, abstract and briefs are filed in the Appellate Court, which has no jurisdiction of a freehold, the cause will be stricken from the docket with leave to withdraw the record, abstract and briefs for the purpose of filing the same in the Supreme Court.

Appeal from the Superior Court of Cook county; the Hon. Chables M. Foell, Judge, presiding. Cause stricken from docket.

Heard in this court at the October term, 1917.

Opinion filed December 17, 1917.

Isidor Plotke, for appellants.

F. J. Griffen, for appellee.

Mr. Justice McSurely

delivered the opinion of the court.

Complainants filed a hill for partition of real estate and for construction of a will, to which answers were filed, and the chancellor duly entered a decree. From this decree the complainants prayed an appeal to the Supreme Court of Illinois, which was allowed, and subsequently an appeal bond was filed reciting the appeal to the Supreme Court and conditioning the obligation upon the affirmance of the judgment in the Supreme Court.

*147It has been held that in a partition suit a freehold is involved, and that the appeal should be taken directly to the Supreme Court and not to this court. In the instant case the appeal was taken to the proper Court, but for some reason which does not appear the record, abstract and briefs have been filed in this court and the cause docketed as an appeal. This is manifestly a mistake; there is no appeal to this court. We shall therefore order the cause stricken from the docket of this court, with leave to the complainants to withdraw the record, abstract and briefs from this court for the purpose of filing them in the Supreme Court or for such other disposition as they may see fit to make of them.

Cause stricken from docket.