McCarthy v. McCarthy, 282 Ill. 488 (1918)

Feb. 20, 1918 · Illinois Supreme Court · No. 11895

282 Ill. 488

(No. 11895.

Cause transferred.)

John McCarthy, Appellee, vs. Margaret A. McCarthy et al.-(Bertha H. McCarthy, Appellant.)

Opinion filed February 20, 1918.

Appeals and Errors—when a freehold is not involved on appeal from a decree of partition. A freehold is not involved on appeal from a decree of partition where the assignments of error and the argument of the appellant do not question the decree so far as the title is concerned but only the action of the court in proceeding to a decree without proper parties and during the pendency of a bill to contest the will through which appellant claims title and in allowing fees to the complainant’s solicitor.

Appeal from the' Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.

William S. Heeeeran, for appellant.

Edward J. Kelley, for appellee.

Mr. Justice Dunn

delivered the opinion of the court:

This appeal is from a decree of partition rendered by the superior court of Cook county, and must be transferred to the Appellate Court for the First District because no freehold is involved and no other ground of jurisdiction in this court exists. The assignments of error and argument of the appellant do not question the decree so far as the title is concerned, but question the action of the court in proceeding to a decree without the holder of a note which was secured by a mortgage on the premises, executed by the appellant after the filing of the bill but before service of summons on her, being made a party, and during the pendency of a bill to contest the will of the appellant’s husband through which she claimed title to an undivided share of the premises, and in allowing a solicitor’s fee to the complainant’s solicitor. None of these questions are such as to give this court jurisdiction of the appeal. The cause will therefore be transferred to the Appellate Court for the First District. Cause transferred.