Board of Education v. Board of Education

Full title: Board of Education of Grant Community High School District No. 121, Lake…

Court: Appellate Court of Illinois, Second District

Date published: Aug 7, 1939

22 N.E.2d 400 (Ill. App. Ct. 1939)

22 N.E.2d 400

Opinion

Gen. No. 9,420.

Opinion filed August 7, 1939.

1. APPEAL AND ERROR, § 70^_ — when order sustaining demurrer not final adjudication. An order merely sustaining a demurrer to the complaint, and upon which no judgment is entered, is not a final adjudication.

_ See Callaghan's Illinois Digest, same topic and section number.

2. APPEAL AND ERROR, § 76^fn_ — when judgment for costs not final. A judgment for costs only, without a determination of the cause, is not a final judgment.

3. APPEAL AND ERROR, § 70^fn_ — when ruling on motion in nature of demurrer, becomes final. Where a motion to dismiss a complaint, which is in the nature of a demurrer is sustained, for such ruling to become final, a judgment should be entered for the defendant to the effect that the plaintiff take nothing by virtue of such action and that the defendant go hence without day, or words of similar import.

Appeal by plaintiff from the Circuit Court of McHenry county; the Hon. WILLIAM L. PIERCE, Judge, presiding. Heard in this court at the February term, 1939. Appeal dismissed. Opinion filed August 7, 1939.

CHARLES E. JACK, of Waukegan, and RICHARD F. LOCKE, of Glen Ellyn, for appellant.

FLOYD E. ECKERT, of Woodstock, and ARTHUR G. WAITE, for appellee.

MR. JUSTICE HUFFMAN delivered the opinion of the court.

This was a suit by appellant district against appellee district for the collection of tuition money. Appellee district filed its motion to dismiss the complaint, which motion was in the nature of a demurrer. The court sustained the motion to dismiss. Appellant has prosecuted this appeal from the order of the court sustaining the motion.

An order merely sustaining a demurrer to the complaint, and upon which no judgment is entered, is not a final adjudication. Freeman on Judgments (5th ed.) vol. 2, p. 1512, par. 717. This rule is observed in the case of Trebbin v. Thoeresz, 316 Ill. 30, 32; Barber v. Wood, 318 Ill. 415. In each of the above cases it is stated that under such circumstances, the court will of its own motion dismiss the appeal. It is further stated by Freeman in the paragraph above referred to, that a judgment for costs only, without a determination of the cause, is not a final judgment. This principle is announced in Williams v. Huey, 263 Ill. 275. Where a motion to dismiss a complaint, which is in the nature of a demurrer, is sustained, for such ruling to become final, a judgment should be entered for the defendant to the effect that the plaintiff take nothing by virtue of such action and that the defendant go hence without day, or words of similar import and meaning. Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200. This same principle is announced in the cases of County of Franklin v. Blake, 257 Ill. 354; Williams v. Huey, supra, and Prange v. City of Marion, 297 Ill. App. 353.

The appeal herein is dismissed.

Appeal dismissed.