Citation Numbers: 33 Ill. App. 116
Judges: Gary
Filed Date: 5/8/1889
Status: Precedential
Modified Date: 7/24/2022
The appellant claimed as her own, a strip of ground twenty-five feet in width along the side of land which is the undisputed right of way of the appellee.
The appellee began, and perhaps finished, fencing it into their apparent right of way. The husband of the appellant, seeing the work in progress, procured the preparation of the bill in this case, swore to it and departed for the premises, several miles from the city. The solicitors of the appellant, having upon the bill so prepared, obtained an order for the injunction afterward issued, waiting until they7 felt assured that the husband had had time to tear down the fence of the railway, filed the bill and took out the writ, enjoining the railway from disturbing her. She has parted with her title pendente lite, and has now no interest in the premises. On these facts being shown the court dismissed her bill. Other circumstances in the case need not be noticed.
The decree of the court is right, except that the right of the parties at law should be left unaffected by it. It does not appear that the appellant asked that the dismissal should be without prejudice to her rights and remedies at law, nor is it now assigned as error that it was dismissed without such saving. In the brief, however, that matter is complained of, and ex gratia the decree of the Circuit Court is so modified that the bill of the appellant and the cross-bill of the appellee are both dismissed without prejudice to the respective rights and remedies of either and both of the parties at law, and a new decree, in lieu of, and as a substitute for, the decree of the Circuit Court will be here entered to that effect.
The appellees will recover from the appellant their costs in this court, except upon the cross-error assigned; those of the Circuit Court are provided for by that portion of the decree there not affected by the decree here. Restitution is not awarded, as she did not take possession under the process of the court. Deaxe affirmed.