Noyes v. Clarke, 161 Ill. App. 297 (1911)

April 18, 1911 · Illinois Appellate Court · Gen. No. 15,465

161 Ill. App. 297

William H. Noyes, Appellee, v. Alma Clarke et al., Appellants.

Gen. No. 15,465.

Appeals and eeboes—who cannot appeal from, order granting writ of assistance. One not a party to the record, though bound by the decree therein, is not entitled to maintain an appeal from an order granting a writ of assistance.

Foreclosure. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1909.

Appeal dismissed.

Opinion filed April 18, 1911.

Albert Wesley Gottschalk, for appellant, Walter M. Roewer.

Ellis & Lewis, for appellees.

Mr. Presiding Justice Smith

delivered the opinion of the court.

It appears from the answer of appellant Walter M. Boewer to the petition for writ of assistance in this case, that appellant came into possession of a part of the premises in question long subsequent to the entry of the decree of foreclosure, and that he acquired possession through Albert Wesley Gottschalk who was bound by the decree. In our opinion appellant has no ground for maintaining this appeal. Kessinger v. Whittaker, 82 Ill. 22.

It further appears that appellant was not and is not a party to the record, and he is not for that reason entitled to prosecute an appeal from the order granting the writ of assistance. Harwood v. Cox, 26 Ill. App. 374. In order to become a party to the record he should have appeared and moved the court to vacate the order granting the writ, and then, if the motion was denied, appeal from the order denying his motion, or if the writ is executed, move to be restored to the possession, and if the motion be denied, take his appeal.

Not being a party to the proceeding below, he is not entitled to appeal. This appeal must therefore be dismissed.

Appeal dismissed.