Citations
- 93 Ill. App. 357
Full opinion text
Mr. Justice Sears
delivered the opinion of the court.
A decree having been entered upon the bill of review vacating the decree originally entered and ordering a rehearing, that decree was brought by writ of error to this court, and the judgment of this court dismissing the writ of error was afterward affirmed by the Supreme Court. Adamski v. Wieczorek, 170 Ill. 373. The effect of these decisions is to hold that the decree then appealed from was interlocutory in character, and hence not to be reviewed upon appeal or writ of error.
After that decision the cause proceeded upon bill of review, answers and replications and supplemental bill, to a final hearing, which resulted in the decree now presented for review.
The difficulty with this decree is that it has no support in the record as to facts necessary "to sustain it. Heither by specific finding of facts in the decree itself, nor by certificate of evidence heard, nor by deposition, nor by evidence heard before a master in chancery, is there any evidence preserved which, in the slightest degree, tends to establish the allegations of the bill of review to the effect that the original decree was improperly obtained. The decree does contain a recital that plaintiff in error had not answered the supplemental bill, though ruled so to do. But the allegations of the supplemental bill present as new matter only the conveyance to Lobe and the removal of buildings. The material allegations of the bill of review-as presenting grounds for a setting aside of the original decree and the entering of a decree of different nature, are presented by the bill of review as first filed, and the answer of plaintiff in error stands thereto, denying these allegations. Ho default of plaintiff in error was entered.
The parties went to trial; therefore the cause must be treated as if an issue were joined upon the supplemental bill as well as upon the bill of review. Jackson v. Sackett, 146 Ill. 646.
Because the decree has no support of evidence in the record it can not be permitted to stand. White v. Morrison, 11 Ill. 361; Ward v. Owens, 12 Ill. 283; Baird v. Powers, 131 Ill. 66; Ryan v. Sanford, 133 Ill. 291; Jackson v. Sackett, 146 Ill. 646.
Hor does a mere general finding of the decree that the allegations of the bill of complaint are true suffice in this behalf. Glos v. Beckman, 183 Ill. 158.
It is contended by counsel for plaintiff in error that the order dismissing the suit at defendant in error’s costs upon June 14, 1893, was a final order, and therefore that the court had no power to vacate that order and reinstate the cause at the January, 1894, term, no motion to that end having been made at the June, 1893, term.
The contention is sound and a citation of authority to sustain it seems unnecessary. But it is not decisive of the cause now, for plaintiff in error, by voluntarily submitting to the jurisdiction and going to a hearing upon the merits of the cause, has waived this question as to the court’s jurisdiction of his person. Herrington v. McCollom, 73 Ill. 476.
It is also contended by counsel for plaintiff in error that the facts set up by the bill of review are not sufficient to warrant the relief prayed, i.