Smith v. Chytraus , 152 Ill. 664 ( 1894 )

Mr. Justice Baker

delivered the opinion of the court:

Section 67 of the Practice act expressly authorizes circuit courts to grant appeals from all final judgments, orders and decrees, but with the limitation that the appeal must be prayed for and allowed at the term at which the judgment, order or decree is rendered. Here the appeal was prayed for by Chytraus and the other defendants immediately upon the rendition of the decree against them, and forthwith allowed by the court, and the terms fixed upon which the appeal might be taken. It appears that afterwards these conditions were complied with, and the appeal perfected. When an appeal is perfected the jurisdiction and control of the court below cease, and the appeal becomes a supersedeas, or a stay of all proceedings to enforce the execution of the judgment or decree. (1 Am. & Eng. Ency. of Law, p. 623, and authorities cited in notes.) An appeal operates as a supersedeas, and its effect is to stay further proceedings until the appeal is disposed of. Oakes v. Williams, 107 Ill. 154; Shirk v. Ch'avel Road Go. 110 id. 661.

It is urged by defendants in error that the appeal that was allowed and that was taken was an appeal to the Appellate Court; that the Appellate Court had no jurisdiction to entertain the appeal, and that therefore the appeal was void and of no effect, and that it follows that the restraining of further proceedings, implied from an appeal to a court which has no jurisdiction to entertain such appeal, must be without any effect also. The premises may be conceded, but we think the conclusions do not follow. In Reynolds v. Perry, 11 Ill. 534, Perry brought suit against Reynolds, and recovered judgment for costs, only. Reynolds prayed for an appeal to this court and it was granted him, and he perfected his appeal by filing an appeal bond. At that time the statute only allowed appeals where the judgment, exclusive of costs, amounted to the sum of. twenty dollars, or related to a franchise or freehold. It was held that the appeal was improvidently granted, but also held that it restrained Perry from collecting his judgment.

Gage v. Rohrbach, 56 Ill. 262, is not here in point. There the court overruled a demurrer to the bill, and from that decision an appeal was prayed and granted. It was held the appeal stayed no decree, because none had been rendered, and it was said that, there being nothing to appeal from, the filing of the bond or the granting of the appeal was an inoperative and idle ceremony, having no effect upon the case. In Brady v. Burke, 90 Cal. 1, the decision was of like import. The court there said : “Under section 939 of the Code of Civil Procedure no appeal could be taken to this court until after the entry of the judgment in the trial court, and it has uniformly been held here that an appeal taken before such entry is premature.”

But in the case at bar it was far otherwise. There was a final decree. The statute allowed appeals from all final decrees. The function of administering the statute was committed by the law to the court that rendered the decree. It was the right of the defendants to pray for an appeal. It was the province of the court to determine to what court of review or appellate jurisdiction the case was appealable, and to fix the terms on which the appeal might be taken. We said in Hake v. Strubel, 121 Ill. 321: “The making of the order allowing appeal, and fixing the amount of the bond, and the time in which the bond and bill.of exceptions in the' cause shall be presented and filed, is a judicial act, which can only be performed by the judge in term time, and when sitting as a court. The making of the order is an exercise of the judicial power vested in the presiding judge, but the order, when made, is the order of the court.” The court, then, when it granted an appeal to the Appellate Court, was acting judicially, and in respect to a matter that was specially committed to its charge by the statute. It had jurisdiction of the parties and of the subject matter, and what it did, although it may have been erroneous, was not absolutely void and of no effect. The parties had a right to rely upon it, and were bound by it until it was set aside by some court lawfully authorized so to do. Sometimes it may be a matter of great doubt to what court a particular suit or. proceeding is properly appealable. The trial court, in the first instance, must determine that question, and it determines it judicially by an exercise of the judicial power that is vested in it. It will not do to say or to hold that after an appeal is granted, and perfected by the giving of a bond, parties or their attorneys, or the ministerial or executive officers of the court, can, at their will and of their own motion, ignore and nullify such appeal. Such doctrine, if held, would inevitably lead to confusion, wrong and oppression in judicial proceedings, and be subversive of justice.

Our conclusion, then, is, that the appeal herein to the Appellate Court, even though granted to a tribunal that had no jurisdiction to entertain it, operated, for the time being, as an appeal, and became a supersedeas, and temporarily stayed all proceedings whatever to enforce the execution of the decree. The running of the sixty days that the decree gave to the complainant in which to pay the $47,867.95, and interest, to the defendants Chytraus, Carson, Haugen and Lindgren, or, in certain contingencies, into the registry of the court, was suspended, at least until the Appellate Court dismissed the appeal of Chytraus, Carson and the Equitable Trust Company, on the 2d day of November, 1892. Smith v. Brittenham, 94 Ill. 624.

It follows from these conclusions, that when the circuit court, on the 14th day of December, 1892, found that the complainant had failed to comply with the decree, and on that ground decreed that he had no right or title in and to the real estate and master’s certificate, and dismissed his bill of complaint out of court, only some forty-two days of the sixty days given him by the decree of March 9,1891, had in fact expired.

We are of opinion that it was error to enter the decree of December 14, 1892, and it is reversed. The cause is remanded to the circuit court for further proceedings in conformity herewith.

Reversed and remanded.

Mr. Justice Craig, dissenting.