Pentecost v. Magahee, 5 Ill. 326, 4 Scam. 326 (1843)

Dec. 1843 · Illinois Supreme Court

5 Ill. 326, 4 Scam. 326

Hugh L. Pentecost et al. v. John H. Magahee.

Appeal front Edwards.

1. Appeal — dissolution of injunction. An appeal or writ of error does not lie from an order of a court dissolving an injunction. But, semble, that where the only prayer of a bill is for an injunction, an onter dissolving the injunction is equivalent to a dismissal of the bill, and is a final disposition of the cause.

2. Same — only from final order. A cause must be finally disposed of in the court below, before either party can carry it to the appellate court, and assign errors, on the record, ^(a)

The decree or order in this cause in the court below, dissolving the injunction, was made at the September term, 1842, before the Hon. William Wilson.

E. D. BakeR and A. T. Bledsoe, for the appellants.

A. Lincoln, for the appellee.

(a) Cases Citing Text. Appeal does not lie from interlocutory judgment or decree. Hayes v. Caldwell, 5 Gilm. 33, 35; Fleece v. Russell, 13 Ill. 31, 33; Keel v. Bently, 15 Ill. 228; Woodside v. Woodside, 21 Ill. 207.

Order sustaining demurrer to bill in chancery is interlocutory. Knapp v. Marshall, 26 Ill. 63.

Order dismissing bill for lack of equity on its face is final order from which appeal lies. Weaver v. Poyer, 70 Ill. 567.

Order merely appointing receiver is interlocutory. Coates v. Cunningham, 80 Ill. 467.

Order merely sustaining demurrer to petition for mandamus is interlocutory. Benevolent Assn. etc. Fire Department v. Farwell, 5 Bradw. 240, 242.

Treat, Justice,

delivered the opinion of the court: [* 327] Pentacost and Pickering exhibited their bill in chancery, against Magahee and others. The bill prayed for an injunction staying proceedings on a judgment at law recovered by Magahee against the complainants, and for further specific and general relief. An injunction was obtained according to the prayer of the bill. The defendants filed their answers, and on their motion, the court dissolved the injunction. The bill was not dismissed. The complainants prosecute an appeal from the decision of the court dissolving the injunction.

This couit has already decided in the case of Cornelius v. Coons, Breese 15, that an appeal or writ of error does not lie from an order of the court dissolving an injunction. It was so held by the Supreme Court of the United States, in the óase of Young v. Grundy, 6 Cranch 51. The reason is, that the dissolution of an injunction is an interlocutory, and not a final decree. The cause must be finally disposed of in the circuit court, before either party can bring it here, and assign errors on the record. If the only prayer of the bill had been for an injunction, the decree dissolving it, might have operated as a dismissal of the bill, and a final disposition of the cause. The bill however prayed for other relief, and did not fall with the injunction, but was retained, and the complainants are still at liberty to proceed with it to a final hearing. Until that hearing is had, or the cause otherwise finally disposed of, the complainants cannot bring it before this court.

The appeal is dismissed, with costs against the complainants.

Appeal dismissed.