Millard v. Cooper, 6 Ill. App. 420 (1880)

June 17, 1880 · Illinois Appellate Court

6 Ill. App. 420

Johnson Millard v. John Cooper.

Practice — Judgment for costs only. — Costs are incidental to the determination of some other right or question. So, where the judgment of the court below, upon the question of the validity of a nuncupative will, neither reversed or affirmed the order of the county court, but was for costs only, it is inappropriate to the issue made and found, and therefore erroneous.

Appeal from the Circuit Court of Lake county; the Hon. C. W. Upton, Judge, presiding.

Opinion filed June 17, 1880.

Mr. W. S. Searls, for appellant;

as to the competency of the evidence to establish a nuncupative will, cited Morgan v. Stevens, 78 Ill. 287; Arnett v. Arnett, 27 Ill. 247; Wier v. Chidester, 63 Ill. 453; Harrington v. Stees, 82 Ill. 50.

The judgment is erroneous: Walker v. Walker, 2 Scam. 291; Foltz v. Stevens, 54 Ill. 180.

Mr. E. M. Haines, for appellee;

that the evidence was sufficient to establish the will, cited Weir v. Chidester, 63 Ill. 453; Harrington v. Stees, 82 Ill. 50.

Pleasants, J.

This was a trial de novo, upon appeal from an order of the county court, refusing to admit to probate the alleged nuncupative will of the deceased; and upon the issue there made the jury found it “ to be her last will and testament.”

A motion for a new trial was overruled, and judgment thereupon entered against the contestants for all the costs, from which one of them took this appeal.

Upon the record brought here we cannot consider the questions argued as to the instructions given and refused, and the sufficiency of the evidence to support the finding, for the reason that the judgment entered does not involve them. It does not determine the validity or invalidity of the alleged will, or the claim of proponents to have it probated, nor reverse or affirm the order of the county court, but is for costs only. Costs are incidental to the determination of some other right or question, but here there is none.

The 21st section of Chap. 33, of the Revised Statutes, provides that “ in all cases of appeal from the decision of a county court in matters of probate, the costs shall be in the discretion of the appellate court; ” but this implies that the subject-matter of the decision appealed from shall be disposed of.

The judgment for costs only is inappropriate to the issue made and found, and therefore erroneous. Stephens on Pl. marg. p. 154.

Reversed and remanded.