Cockeram v. Cockeram, 16 Ill. App. 91 (1885)

Feb. 5, 1885 · Illinois Appellate Court

16 Ill. App. 91

William Cockeram v. Catharine Cockeram et al.

Appeals — Bill not dismissed. — Where there has been no final disposition of a bill in the court below, and the bill has never been dismissed and no final order made, an appeal will not lie.

Appeal from the Circuit Court of Grundy county; the Hon. J. McRoberts, Judge, presiding.

Opinion filed February 5, 1885.

Messrs. Doud, Wing & Carter, Mr. J. H. Sampson and Mr. A. R. Jordan, for appellant.

Messrs. Hill & Dibell and Mr. E. Sanford, for appellees;

that no appeal lies from any interlocutory order, cited Hunter v. Hunter, 100 Ill. 5 9; Gage v. Eich, 56 Ill. 298; Pentecost v. Magahee, 4 Scam. 327; Frederick v. Savings Bk., 106 Ill. 147; R. & M. R. R. Co. v F. L. & T. Co., 70 Ill. 249; Fleece v. Russell, 13 Ill. 32; Hayes v. Caldwell, 5 Gilm. 33; Atkins v. Huston, 5 Bradwell, 626.

Lacey, J.

The appellant, William Cockeram, filed his bill in the circuit court March the 3d, A. D. 1881, seeking to set aside the will of Si tnuel Cockeram, deceased, the father of appellant, dated Av rust 2, 1879. The appellees were the widow, sons and dam liters of the deceased and their husbands.

During the May term of this court, counsel for appellee entered their motion to dismiss the bill for the reason that there had never bet ti any final disposition of the bill, that the bill had never 1 een dismissed by the court below , that the case was still pen ling in the circuit court, and that no appeal would lie until an order of dismissal was entered in that court. This mot on was not acted on at the time hut it was taken with the ca ;e to be decided with it. The appellees now insist on the r motion, and it becomes necessary for us to consider it.

It appears from the record that an issue of fact in accordance with the provisic is of the statute was made to try the questions whether or : ot the paper offered in evidence purporting to be the last >vill and testament of Samuel Cockeram, deceased, was his last' dll and testament. The case was entered on the law docket and the cause tried at the March term of court, A. D. 1884, on ucli issue. All the entries by the court wore made on the law docket and show that the case was tried by a jury and the verc ict of the jury was rendered in favor of appellees; that the pa >er offered in evidence was the last will and testament of Sami el Cockeram deceased; that there was a motion by appellant ft r anew trial; that the motion was overruled, and that judgim nt was by the court entered on the verdict and appeal by apj ellant prayed to this court and allowed by the circuit court. But no entry was made on the chancery side of the court and ti e bill was never dismissed by any order or decree entered c T record.

It appears that there was no final disposition made of the case. The bill has never been dismissed and no final order made. Until this is done no appeal is possible and one can not be taken to this court.

We think the authorities cited by appellees’ counsel fully sustain the rule of law contended for. See Woodside v. Woodside, 21 Ill. 207; Hunter v. Hunter, 100 Ill. 519; Gage v. Eich, 56 Ill. 298; Pentecost v. Magahee, 4 Scam. 327; Frederick v. Savings Bank, 106 Ill. 147; R. & M. R. R. Co. v. F. L. & T. Co., 70 Ill. 249; Fanning v. Russell, 94 Ill. 390; S. C. R. R. Co. v. Toomer, 9 Rich. (S. C.) 270; Fleece v. Russell, 13 Ill. 32; Hayes v. Caldwell, 5 Gil. 33; and Atkins v. Huston, 5 Brad. 326.

The motion is therefore sustained and the appeal dismissed.

Appeal dismissed.