Crowe v. Kennedy , 224 Ill. 526 ( 1906 )

Mr. Justice Carter

delivered the opinion of the court:

If the decree of March 6, 1905, was a final decree and settled the merits of the controversy as to whether the trust deed was still a valid and enforceable lien on the property therein described, then this appeal does not bring before us that decree and the matters therein and thereby decided, but only the decree of March 20, from which the appeal was prayed and perfected. This court in Gray v. Ames, 220 Ill. 251, held that a decree was final which fully decided and disposed of the entire merits of the case; that it would be final if it were the last decree necessary to be entered to give the parties the full and entire benefit of the judgment of the court, though some other order or decree of the court may be necessary to carry into effect the rights of the parties or some incidental matter may be reserved for consideration, which decision, either one way or another, cannot have the effect of altering the decree by which the rights of the parties have been declared. In Jackson v. Jackson, 144 Ill. 274, it was held that a decree in a suit for partition which found the several interests of the parties and appointed commissioners to make partition was a final decree, though no partition was ever made. In Glos v. Clark, 199 Ill. 147, we held that the portion of the partition decree which declares the title of the parties is a binding and appealable order, notwithstanding commissioners were appointed to make a partition and report, but that the portion of the decree which orders an accounting is interlocutory only, and not a final, appealable order; that various other orders were merely for the purpose of executing the decree, and that the decree of partition terminated the litigation between the parties, so that if affirmed nothing remained to be done but to carry the decree into execution.

The decree of March 6 found that the lien of the trust deed was not barred by the Statute of Limitations; that it was still valid and enforceable. It closed all these matters for further consideration, except on appeal directly from that decree. It settled all the rights of the parties, except in the mere matter of detail as to whether the property was susceptible of partition. Every assignment of error in this court by appellants is in reference to the findings of the decree of March 6. It is true that their assignments 6 and 7 refer specifically to the decree of March 20; but the findings complained of on this last decree (except as to the amount due as principal and interest of said notes) are simply repetitions of the former findings of the decree of March 6. That decree finally adjudicated the rights and interests of the parties, and as this appeal is only from the decree of March 20, the findings under the final decree of March 6 cannot be here reviewed. Adamski v. Wieczorek, 170 Ill. 373; Crane v. Stafford, 217 id. 21; Stahl v. Stahl, 220 id. 188; Hill v. Chicago and Evanston Railroad Co. 140 U. S. 52; Shepard v. Rice, 38 Mich. 556; Pierce v. Oliver, 13 Mass. 210.

The assignments of error which question the finding of the amount due by the decree of March 20, 1905, are without merit, as the proof clearly showed .that the interest had only been paid to January 26, 1904, and that all of the principal was still due and unpaid. The court, under this order, had a right to direct the master to sell the land described in the trust deed and pay appellee Grace Kennedy out of the proceeds of the sale the amount found due her. Spencer v. Wylie, 149 Ill. 56.

Appellants have discussed exhaustively in their briefs, with the citation of many authorities, various questions which it is unnecessary to consider in view of our holding that the decree of March 6, 1905, settled the rights of the parties under the questions here involved, and that that decree cannot be reviewed on this appeal.

We find no material error in the record. The judgment of the Appellate Court will be affirmed.

Judgment affirmed.