Funk v. People, 157 Ill. App. 614 (1910)

Oct. 18, 1910 · Illinois Appellate Court · Gen. No. 5379
157 Ill. App. 614
John Funk et al., Appellants, v. The People, for use of Frank Kempton, Appellee

John Funk et al., Appellants, v. The People, for use of Frank Kempton, Appellee.

Gen. No. 5379.

Appeals and errors—remedy xohere directions upon remandment improper. If upon remandment of a cause the directions given to the trial court are improper, the remedy is by petition for rehearing; if that remedy is not availed of the propriety of such directions cannot be urged upon a subsequent appeal.

Appeal from the Circuit court of Livingston county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the April term, 1910.

Affirmed.

Opinion filed October 18, 1910.

Rehearing denied November 18, 1910.

*615Chase Fowler, for appellants.

White & Tuesburg and Norton & Ortman, for appellee.

Mr. Presiding Justice Willis

delivered the opinion of the court.

This case with slight variation in the title, was before this court in 123 Ill. App. 100, before the Supreme Court in 221 Ill. 436, and before this court again and reported in 139 Ill. App. 563. The opinion on that appeal directed the court below to enter a certain order. The cause was redocketed in the court below, and an order was there entered from which John Funk and Lizzie F. Kempton administrators of the estate of Parker S. Kempton, deceased, prosecute this appeal.

Motions by appellee to tax the costs of the additional abstract to appellants and dismiss the appeal, were taken with the case. The order appealed from, so far as this record discloses, is in exact obedience to the directions in our former opinion.

The circuit court was bound to enter the order as directed. If the directions to that court were, in any particular, improper, appellant’s remedy was to petition this court for a rehearing. This they did not do. Therefore they must abide by our former direction. The motion to dismiss the appeal is denied. The motion to tax the cost of the additional abstract to appellant is granted and the order appealed from is affirmed.

Affirmed.