Louisville, Evansville & St. Louis Consolidated Railroad v. Surwald, 34 Ill. App. 525 (1890)

Feb. 4, 1890 · Illinois Appellate Court

34 Ill. App. 525

Louisville, Evansville & St. Louis Consolidated Railroad Company v. Clara Surwald, Adm’x, etc.

Practice—Appeal by Person Not a Party.

A person not having been made a party to a suit originally, can not become a party on the mere suggestion of defendant’s counsel.

[Opinion filed February 4, 1890.]

Appeal from the Circuit Court of St. Clair County; the Hon. B. R. Burroughs, Judge, presiding.

Appellee filed in the County Court of St. Clair County a petition to sell leasehold interest of lands to pay debts, where, on hearing, the petition was dismissed. Appellee appealed to the Circuit Court, and on hearing, a decree for the sale of interest in lands to pay debts was entered. The appellant was not a party to that decree. The defendants to the petition were the Illinois and St. Louis Coal Co., and the East St. Louis Elevator Co. The only manner in which the appellant is connected with this case appears in the following order of court: “And now on this 2d day of July, A. D. 1889, the same being the seventh Tuesday of the said term, come again the parties by their respective solicitors, and the defendants’ motion for a new hearing is heard, and by the court denied. And thereupon the solicitor for the defendants suggests to the court, that since the commencement of this suit the defendant, The Illinois and St. Louis Railroad and Coal Company, has become merged by consolidation with the Louisville, Evansville and St. Louis Consolidated Railroad Company, and on behalf of said Louisville, Evansville and St. Louis Consolidated Railroad Company prays an appeal to the Appellate Court, which is allowed, upon condition that the said L. E. & St. L. Consolidated R. R. Co., or either of the defendants, file an appeal bond in the penal sum of $400, with security, to be approved by the clerk of the court within forty days from this date, and a certificate of the evidence or bill of exceptions within the same time.”

The appellee entered a motion in this court to dismiss the. appeal, which was reserved for final hearing.

Messrs. G. & G. A. Koerner, for appellant.

Mr. Charles W. Thomas, for appellee.

Phillips, J.

The appellant not being a party to the record, if it desired to be let in to defend, it should have personally made application therefor. T. W. & W. Ry. Co. v. Beggs, 85 Ill. 80; The Mercantile Insurance Co. v. Jaynes et al., 87 Ill. 199; Lawrence v. Lane, 4 Gilm. 354.

The suggestion of the solicitors of defendants to the petition did not make appellant a party. Mercantile Insurance Co. v. Jaynes et al., supra.

Rot being a party to the proceedings the right of appeal did not exist.

The appeal is dismissed.

Appeal dismissed.