Racine & Mississippi Railroad v. Farmers' Loan & Trust Co., 70 Ill. 249 (1873)

Sept. 1873 · Illinois Supreme Court

70 Ill. 249

The Racine and Mississippi Railroad Company v. The Farmers’ Loan and Trust Company et al.

1. Appeal—lies only from final order or judgment. This court has repeatedly decided that an appeal or writ of error will not lie from a decision of the circuit court, unless it is the final judgment in the cause.

2. An order in a chancery cause overruling a motion to set aside a sale made under a former decree in the cause, is interlocutory only, from which an appeal or writ of error will not lie.

Appeal from the Circuit Court of Stephenson county; the Hon. William Brown, Judge, presiding.

This was a bill filed by the Farmers’ Loan and Trust Company, against the Eacine and Mississippi Eailroad Company and others, to foreclose a mortgage of $700,000. There was a cross-bill filed, and the court decreed the sale of the mortgaged property. Afterwards, the Eacine and Mississippi Eailroad Company filed its cross-bill and petition against the original complainant and George A. Thompson and the Northern Illinois Eailroad Company, to have the sale of the property set aside. The court below refused the application to set aside the sale, and the defendant appealed.

Mr. Lyman E. DeWolf, and Mr. J. H. Knowlton, for the appellant.

Messrs. Burchard & Barton, for the appellees.

Mr. Justice Craig

delivered the opinion of the Court:

This is an appeal from an order made by the circuit court of Stephenson county, at the April term of the court, 1873, which order is as follows:

“The Farmers’ Loan and Trust Company v. The Racine and Mississippi Railroad Company et al. Original Bill.”

“The Racine and Mississippi Railroad Company v. The Farmer’s Loan and Trust Company et al. Cross-bill.”

“And now, at this day, comes on to be heard the motion of the Eacine and Mississippi Eailroad Company to set aside the sale made under a former decree in this cause, and filed herein September 6, 1871, and the court having heard the evidence taken on said motion, and the argument of respective counsel, overrules the motion. To which ruling of the court said Eacine and Mississippi Eailroad Company, by its solicitors, excepts, and prays an appeal to the Supreme Court, from* the order overruling said motion, which appeal is allowed,” etc.

This judgment is interlocutory only, from which an appeal or writ of error will not lie. There must be a final decision of the case, before either party can bring it to this court for review. The record does not show the case finally disposed of in the circuit court. For aught that appears the cause is still pending in the circuit court of Stephenson county.

This court has repeatedly decided that an appeal or writ of error will not lie from a decision of the circuit court, unless it is the final judgment in the cause. Woodside v. Woodside, 21 Ill. 207; Gage v. Eich, 56 Ill. 297.

For the reason indicated the appeal will be dismissed..

Appeal dismissed.