Citation Numbers: 91 Ill. App. 403
Judges: Horton
Filed Date: 10/23/1900
Status: Precedential
Modified Date: 7/24/2022
delivered the opinion of the court.
Two points are made by counsel for appellant. The first is this:
“ The motion to strike the cross-bill from the files, though not made in the form of a general demurrer, was in fact such by its language, and the court erred in overruling it. It was also good as a motion.”
The whole argument and contention upon this point is upon the theory that said cross-bill sets up no new matter and states no facts or reasons which would entitle said Hillis to affirmative relief. This point is not well taken. We think the cross-bill does present statements which, if sustained by sufficient evidence, would support a decree in favor of appellee Hillis. Counsel for appellant attack said cross-bill in their brief in general terms only, and we shall not, therefore, do more in regard to it than to say in general terms that we think it quite sufficient to sustain the order overruling the motion or demurrer, whichever it be called.
But whether it be so or not, the motion should have been denied for the reason that the cross-complainant should be given an opportunity to amend, unless it appears that no amendment could be made which would entitle him to relief. The court below did not err in denying said motion.
The second point is this :
“ As the result of Hillis5 proceedings on the original bill he must be taken as having abandoned his cross-bill, and so left appellant free to dismiss his bill.”
As to this, it is urged that because the appellee Hillis adopted the course of “ bringing the original bill on for hearing alone, against appellant’s repeated and persistent objections, he must be held to have abandoned his cross-bill, and so removed it as an obstacle to the dismissal of the original bill.”
There is no merit in this contention. While it is usually a saving of time of the court and counsel to hear the original and the cross-bill at the same time, yet there is no law requiring this to be done. It does not rest with counsel for appellant, under the record in this case, to argue that a defendant may, by filing a cross-bill, delay the complainant in securing his rights as though such were the facts in this case. All of the dilatory motions and pleading were by the appellant. The original bill was filed June 20th, and the summons issued thereon was not returnable until the third Monday in July. Yet the appellee Hillis filed his answer thereto and his cross-bill June 28th, and caused the original case, which he put at issue so promptly, to be referred to a master before the return day of the summons, with directions to the master to speed the case.
We perceive no merit in the contentions of counsel for appellant, and no error by the court below. The decree of the Circuit Court is afiirmed.