Vail v. Arkell , 1891 Ill. App. LEXIS 396 ( 1891 )

Waterman, P. J.

A cross-bill is defined by Story in his work on Equity Pleadings, Sec. 389, to be “ a bill brought by ■a defendant in the suit against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matter in question in the original bill.”

It is quite manifest that the cross-bill of Ellen P. Vail is not touching the matters in question in the original hill of Annie M. Miller; that bill is based entirely upon the charge that she, Annie Miller, has a lease, with rent paid up for twenty years, to certain premises; and is therefore entitled to he neither harassed nor disturbed by the executors of Joseph W. Drexel, by whom it is alleged the lease was made. Nor is the cross-bill of Ellen P. Vail touching any of the matters in question in the cross-bill filed by the executors of Joseph Drexel. That bill is based upon the allegation that they are owners of certain premises and that Annie Miller and Alexander Miller are interfering with their use and enjoyment of the same, and have committed, and threaten to commit, divers trespasses, etc. Ellen P. Vail having boon made a party to the original bill and to the cross-bill without any allegation showing why she should he a party, as neither hill showed any ground of relief against her, and neither asked for any, she could have sucessfully demurred to each of these bills. Kennedy v. Kennedy, 66 Ill. 190-195.

Nor was she, as is urged, ordered to answer the cross-bill; she was ruled to plead, answer or demur to the same. The matters set up in the cross-bill of appellant are in no respect germane to those of the original hill or cross-bill of Drexel and Arkell.

Appellant alleges that the Circuit Court disregarded the order of the Appellate Court, and rendered a decree in violation of such order. If this is so, such action upon the part of the Circuit Court was error, but its decree was not therefore void; if the Circuit Court rendered a decree variant from that directed by the Appellate Court, appellant might then have appealed from that decree or sued out a writ of error; instead of this she allows nearly eight years to elapse ere she complains of this decree, which she now says was unauthorized and void. More than seven years have elapsed since the sale took place under this decree, during all of which time she has been inexcusably silent. Nothing is alleged which, during all this time, she has not known. One guilty of such laches is not favorably regarded by a court of equity. Munn v. Burgess, 70 Ill. 604; May v. Baugh, 77 Ill. 500; Bush v. Sherman, 80 Ill. 160; Hoyt v. Pawtucket Inst. for Savings, 110 Ill. 390; Hamilton v. Lubukee, 51 Ill. 415; Dempster v. West, 69 Ill. 613.

Appellant charges that the master began the publicationof notice of the sale by him made; prior to the expiration of the time fixed for payment by the defendants of the sum found due. The decree was entered July 14, 1SS3—the first publication of notice of sale was October 13, 1883.

Appellant, however, contends that as the decree' was amended on the 9tli day of October, 1883, the thirty days began to run from that time. The amendment, it appears, was made by stipulation of the parties, of whom appellant was one, and was purely formal, being merely to correct certain clerical errors. The decree remained a judgment as of the date of its entry, July 14,1883. Black on Judgments, Sec. 154; Coughran v. Gutcheus, 18 Ill. 390; Smith v. Wilson, 26 Ill. 186.

The allegation that the master has never made to Joseph W. Drexel, his heirs, executors Or assigns, any valid conveyance of the premises, is a mere conclusion of the pleader. What conveyance he has made so that the court can determine as to its validity, is not shown.

The demurrer to appellant’s cross-hill was properly sustained, and the decree dismissing the same is affirmed.

Decree affirmed.