Price v. Springer ( 1909 )

Mr. Justice Vickers,

dissenting:

I do riot concur in the views expressed in the majority opinion. In the view that I take of this case Price should be held bound by the determination of the issue made up and tried between him and Mann on the petition to permit Mann to intervene. The situation presented by this record is peculiar, and calls for the application, as I think, of a different rule from that laid down in the majority opinion.

The intervention of Mann in this case was after the court had rendered a decree settling the rights of all the other parties. If he had no interest there was no. reason for vacating the final decree or otherwise interrupting the progress of the cause. If the application to intervene had been made before the final decree, the trial court would have, no doubt, permitted him to become a party upon his showing, prima facie, an interest in the event of the suit. But at the time the petition was presented there was no question undetermined in the case as to the interest of the parties except the question raised by the petition. Under section' 14 of chapter 106 of our statute Mann had the right to come in at any time during the pendency of the suit and answer the petition and have his rights determined, the same as though he had been made a party in the first instance. Kester v. Stark, 19 Ill. 328.

When the petition for intervention was filed the parties made up an issue and without objection proceeded to trial of that issue before the court, both parties introducing evidence. The record shows .that after the evidence was all heard and the court had heard the arguments of counsel the issue thus submitted was decided by the court, which will appear from the decree of the court entered at that time. Appellant, Price, insists that.the decree of the court entered on the hearing of the intervening petition was interlocutory, and that it was error in the court to refuse to hear further evidence in relation to the trust claimed by Mann, on the final hearing. I have no. doubt that this order was interlocutory,—at least to the extent that the court might, for good cause shown on the final hearing, have modified or vacated it in furtherance of justice. The general rule prevails in this State that until a final decree all previously rendered decretal orders are before the court for review, and may be altered,- modified or vacated, as the circumstances of the case may require. Hawkins v. Taber, 47 Ill. 459; Gibson v. Rees, 50 id. 383; Jeffery v. Robbins, 167 id. 375.

While conceding to the fullest extent the power of the court, on final hearing, over all previous orders entered, it by no means follows that, a court of equity will exercise this power simply because some dissatisfied party may request a reconsideration of the question settled by the interlocutory order. In the absence of any showing by the party against whom such interlocutory order is entered that there are unconsidered facts which would tend to impeach the correctness of the decree or show that the judgment of the .court ought to be modified or vacated, the court is not required to re-hear such interlocutory matter. In other words, the court is not required, on final hearing, to go through the unnecessary form of re-trying a question on the same evidence that has already been considered and the question decided.

Appellant made no suggestion, on the final hearing, of any newly discovered evidence, nor did he offer any other reason why he was entitled to a rehearing upon the issue between himself and appellee. Under these circumstances I think the court properly refused to re-try this issue.