Rosenthal v. Board of Education , 1908 Ill. App. LEXIS 652 ( 1908 )

Mr. Justice Freeman

delivered the opinion of the court.

Appellee moves to dismiss the appeal and assigns as grounds for the motion, first, that the decree of the Circuit Court appealed from is not a final decree; second, that the statutes provide for appeal only from final and not from interlocutory decrees; and third, that the decree was entered upon the motion and at the request of appellants. The last of these alleged grounds may be disregarded. The decree as entered is not such as the appellants prayed for and was objected to, although in some respects apparently not unsatisfactory to them. No reason appears why they could not appeal from a decree entered over their objections if such decree is final and appealable.

We are of opinion, however, that this is not a final decree and that we are without jurisdiction to entertain the appeal. As appears from the preceding statement the decree sets aside the appraisement in controversy fixing the value of lot 31, enjoins the defendant from attempting to enforce it and from attempting to collect in any way from complainants any sum of money for rent of said lot 31 for the ten years succeeding May 8, 1905, “until the further order or decree of this court.” It is apparent from language of the decree that it was intended to be “final and appeal-able;” but we cannot concur in the ■ contention that a decree which by its terms remains in force only until the further order of the court which enters it, which leaves it open for that court to change it at any time and which expressly reserves for further consideration “the matter of determining the fair and reasonable rental value of lot 31 for said ten years,” is a final decree. The matters thus held subject to “further order of decree” of the court and reserved for further consideration embrace substantial matters of controversy. It was said in Farson v. Gorham, 117 Ill. 137-140, “the order that has been entered may be vacated by the Circuit Court in a final decree and hence no necessity exists for reviewing that order until the final decree is rendered in the cause. ’ ’ While substantial questions raised by. the bill and in part covered by the decree appealed from are still open for further disposition by the Circuit Court that decree must be regarded as interlocutory. As said in Schofield v. Thomas, 226 Ill. 631: “This court will not determine a case by piecemeal.” Whether the Circuit Court erroneously set aside the appraisement, found that the leases themselves do not fix the rental value for the ten years succeeding May 8, 1905, and reserved the matter of fixing said rental value until after the final disposition of the appeal, will not be considered by an appellate tribunal “until the case has finally been determined below and the whole record is properly presented for review.” The statute provides (chap. 110, see. 68) that* appeals and writs of error “may be taken from all final judgments, orders and decrees” except as specially provided. A judgment or decree is only final when it terminates the litigation between the parties on the merits of the case, so that when affirmed the court below has only to execute the judgment or decree it has already entered. C. & N. W. Ry. Co. v. City of Chicago, 148 Ill. 141-153. The decree under consideration is not of that character. The court has reserved and left undecided an ultimate question in controversy, viz., the amount of rent to be paid. What is said in Brodhead v. Minges, 198 Ill. 513 is, we think, in point. In Gray v. Ames, 220 Ill. 251-254, a final decree is defined to be “one which fully decides and finally disposes of the entire merits of the case.”

It is contended in behalf of appellants that the decree under consideration is final and appealable because, as is claimed, it sets aside an award, fixes the ultimate rights of the parties under their contract, determines the merits of the case and awards costs against the defendant. It is true the decree purports to set aside the alleged appraisement but it leaves the parties suspended thereafter, the defendant enjoined from collecting more than a certain sum as rental which is subject to the further order of court and the complainants protected to that extent by an injunction likéwise subject to such further order, while the whole matter of determining the rental to be paid during the ten years in question, the ultimate subject matter, as we have .said, of the whole contention, is expressly reserved for consideration until after the final disposition of the appeal. This is to bring the case up by piecemeal. Appellants ’ counsel refer us to Crouch v. First National Bank, 47 Ill. App. 574-575, in support of their contention that the present appeal should be entertained as an exception to the general rule that an appeal will not lie until the cause has been finally disposed of in the Circuit Court; and to Loughlin v. U. S. School Furniture Co., 118 Ill. App. 36-40. In the case last cited, it was said that “under the particular circumstances” of that case it would “be a great hardship upon appellant if not a denial of justice to him to dismiss the appeal,” and that “in all essential particulars this is a final decree.” No such exigency is shown to exist in the case at bar, and we are unable to discover any sound reason for regarding it as within any exception to the general rule imposed by" statute that appeals lie only from “final judgments, orders and decrees.” See Brodhead v. Minges, 198 Ill. 513-517. (R. S., chap. 110, sec. 68.) It is true, as said in Alison v. Drake, 145 Ill. 500-510, that “a final decree is not necessarily the last order in the case,” but it is also true as further said in the same cause that “when it finally fixes the rights of the parties, it is final and may be reviewed on appeal or writ of error.” Counsel argue that “if it shall be decided that the rent is determined and fixed by the terms of the lease and that the court has no right to substitute its own award for that of the appraisers, then there can be no question about the finality of the decree.” Whether so or not, it is equally clear that if not so decided the decree would not be final.

For reasons indicated the appeal must be dismissed.

Appeal dismissed.