Gage v. Eich, 56 Ill. 297 (1870)

Sept. 1870 · Illinois Supreme Court

56 Ill. 297

Asahel Gage v. Peter Eich et al.

Appeal—at what stage of a cause it will lie. An appeal will not lie from an order of the court, simply overruling a demurrer to a hill in chancery. Such an order is not final. An appeal will not lie from any interlocutory order merely, either in a suit in chancery or an action at law.

Appeal from the Superior Court of Chicago; the Hon. John A. Jameson, Judge, presiding.

This was a suit in chancery, brought by Peter and John Eich against Asahel Gage, to remove a cloud, in the shape of a tax deed to the defendant, upon complainants’ title to certain premises. The defendant filed a.demurrer to the bill of complaint, which was overruled by the court. Whereupon the defendant prayed an appeal to this court, which was allowed upon his filing an appeal bond within ten days, in the penalty of $250, with approved security. Appeal bond filed; and afterward the following order was entered of record:

This cause having heretofore been brought on to be heard upon the bill of complaint filed therein, and the demurrer thereto of the defendant, and upon consideration thereof, William T. Butler, of counsel for said complainants, and E. Roby, of counsel for said defendant, being heard, the said demurrer being overruled, and the said defendant electing to stand by his said demurrer, and the said bill of complaint being therefore taken as confessed by the said defendant, and, it appearing satisfactorily to the court, from the proofs adduced herein, that all the material facts alleged in said bill of complaint are true, and that the said complainants are justly and equitably entitled to the relief therein prayed for, on notice of said Wm. T. Butler, of counsel for said complainants, it is ordered’, and this court, by virtue of the power and authority therein vested, doth order, that it be and it hereby is referred to one of the masters of this court to- compute and ascertain the amount justly due and owing to the defendant for principal and interest on account of the taxes and costs paid by him, as set forth in said bill of complaint, and report the same to this court with all convenient speed.

The defendant brings the record to the court, and assigns the following errors: The court erred, 1st. In overruling the said demurrer; 2d. In proceeding in said cause after an appeal had been allowed and perfected.

Mr. Edward Roby, for the appellant.

Mr. William T. Butler, for the appellees.

Mr. Justice Breese

delivered the opinion of the Court:

It is a well settled rule in equity practice, as well as in proceedings at common law, that no appeal lies from any interlocutory order merely, in either court. There must be a final decree, order or judgment, to justify an appeal.

In this case, there has been no final decree; nothing, indeed, but overruling a demurrer to the bill and a reference to the master to state an account and to report the same to the court. The case is yet in, fieri, and no appeal can lie. 2 Dan. Ch. Pr. 1543, and the case cited in note 1.

For these reasons the appeal must be dismissed.

Appeal dismissed.