Pease v. Roberts , 1881 Ill. App. LEXIS 103 ( 1881 )

Pee Curiam.

On the 9th day of August, 1879, the county court of Tazewell county made an order revoking letters of guardianship, before that time issued by said court, to John G. Boberts, and revoking and cancelling all proceedings in said court, appointing said Boberts guardian of William E. and Henry L. Pease,

A.n appeal was taken from this order, to the circuit court, and the cause docketed for the November term, 1879, and on the 29th day of November, 1879, it being the last day of said term, the following order and stipulation of parties was entered of record:

“ And now this day come the plaintiffs, William E. Pease and Henry L. Pease, by C. A. Roberts, Esq., their attorney, and the defendant, John Gr. Roberts, as guardian of William E. Pease and Henry L. Pease, by Green and Oohrs, his attorneys, also comes, and by agreement of the parties, on motion of the plaintiffs’ attorney, it is ordered by the court that the intervention of a jury in the trial of this cause, be and the same is hereby waived, and this cause is set for trial by the court, and the same be and is hereby set for hearing by the court in vacation, on depositions and written arguments, to be filed by December 20th, A. D. 1879, and by agreement of the parties, on motion of the plaintiffs’s attorney, it is ordered by the court that the judgment to be rendered herein be rendered as of this term of this court.”

On the 9th day of January, 1880, an order was signed by the judge of said circuit court, reciting the agreement aforesaid, the hearing and final determination of the cause in vacation as provided by the agreement, and finding and decreeing that the petition to the co.unty court for the removal of said guardian was not proved, and that the order appealed from be reversed at the costs of the petitioners; and the clerk of the Tazewell circuit court was ordered to file and record said order as of the 29th day of November, 1879; either party to have ten days from the 9th day of January, 1880, within which to apply for an appeal.

At the next term, 2nd February, 1880, the petitioners moved the court to set aside the finding and decree of the circuit court and grant a new trial. This motion was continued from time to time until the December term, 1880, when said motion was sustained and a new trial granted upon petitioners paying costs.

At February term, 1881, appellee moved to strike the cause from the docket, for the reason that the decree signed and filed under the stipulation at the November term, 1879, was final. And at the succeeding March term this motion was sustained and the cause stricken from the docket. From this order an appeal is taken to this court.

We are of the opinion that the stipulation of the parties signed and filed at the November term, 1879, comes within the perview of section 48 of chapter 37, of the revised statute of 1874, and is therefore valid, and that the order made in vacation and entered nuno fro tuno, was final and binding upon the parties, subject only to the right of appeal or writ of error; that the order vacating the same at a subsequent term of the court, was without authority and void, and that the order made at the March term, 1881, striking the cause from the docket, was properly made, and that the same should be affirmed by this court.

The order of November, 1879, reversing the order of the ■county court, was a final disposition of the cause on its merits, and not having been appealed from within the time allowed by law, is not brought before this court for review by the appeal taken from the order of 1881. striking the cause from the docket. Smith v. Britten ham, 94 111. 624.

Judgment affirmed.