Knapp v. Marshall, 26 Ill. 63 (1861)

April 1861 · Illinois Supreme Court

26 Ill. 63

James H. Knapp et al., Plaintiffs in Error, v. John A. Marshall et al., Defendants in Error.

ERROR TO KNOX.

A decision sustaining a demurrer to a bill in chancery is interlocutory, not final, and this court has not jurisdiction of such an order. If the party is willing to rest his case on the demurrer, he should ask the court below to dismiss the bill.

This was a bill filed in the Knox Circuit Court for relief and discovery. A demurrer was interposed, on the ground that the complainants had not made proper parties to the bill; the court sustained the demurrer to the bill, and on this order, the complainants below brought this writ of error.

E. W. Hazard, for Plaintiffs in Error.

T. G. Frost, and G. W. Ford, for Defendants in Error.

Breese, J.

It does not appear from the record in this cause that any final decree has been entered, by the Circuit Court. It only shows that the court sustained a demurrer to the bill, to which the complainants excepted. What followed on sustaining the demurrer is not shown. The cause, for aught that appears, is still pending in the Circuit Court for the purpose of new parties. We cannot say. If the record showed that the bill had been dismissed for the want of proper parties, we should hold that error, because on such showing, if the bill has merits, it must be retained in order that the proper parties may be made. A complainant, willing to rest his case upon a demurrer, must move the court to dismiss the bill. This is final, and appeal or error will lie. • A decision on the demurrer is merely interlocutory. Fleece v. Russell, 13 Ill. 32 ; Pentecost v. Magahee, 4 Scam. 326; Hayes v. Caldwell, 5 Gilm. 33. This objection was not made on the hearing of this cause. We find, on examination, that we have no jurisdiction, and must dismiss the writ of error.

Writ of error dismissed.