Mowatt v. Cole , 59 Ill. App. 345 ( 1895 )

Mb. Justice Gaby

delivebed the opinion of the Couet.

The motion of the appellee to dismiss this appeal for want of jurisdiction is denied for reasons stated in Union Nat. Bk. v. Browne-Chapin Lumber Co., 59 Ill. App. 423.

The case is that the appellee petitioned the court to order the appellant, who is assignee in insolvency of J. M. Omo, to pay rent. It appears the appellant has no sufficient funds of the estate of the insolvent with which to pay, and as the order made that he should pay is one that the appellee probably expects to enforce by attachment, the appellant has good reason to try and get it reversed.

A first order to pay was made November 20, 1894. The order appealed from was entered December 18,1894, and as appears by the bill of exceptions, apparently without any consideration of the merits, but upon a holding that the order entered November 20th, being in the preceding term, was binding upon the court. That was an erroneous holding. Templeton v. Bender, 59 Ill. App. 327, citing Hanford Oil Co. v. First National Bank, 126 Ill. 584.

The case of Shepard'v. Speere, 41 Ill. App. 211, 140 Ill. 238, is the same in principle. So long as the estate of the insolvent remains to be distributed, the court may repent any former action, and it makes no difference that the judge is not the same man. Fort Dearborn Lodge v. Klein, 115 Ill. 177; Niagara Fire Ins. Co. v. Scammon, 35 Ill. App. 582.

As the merits of the appellee’s claim were not considered on the order appealed from, we shall not now exercise original jurisdiction by deciding a question not decided by the County Court. American Trust and Savings Bank v. Gradle, 59 Ill. App. 333.

The court below must first pass upon the case. The fact that the order appealed from is indefinite, gives the appellant the greater reason to be afraid of it, and to try and get rid of it.

The order is reversed and the cause remanded with directions to the County Court to consider and determine the claim of the appellee upon its merits. Case last cited.