Banke v. Erickson

Full title: Frank Banke, Sr. et al., Appellants, v. Cecil C. Erickson, Receiver…

Court: Appellate Court of Illinois, First District

Date published: Jun 30, 1943

320 Ill. App. 142 (Ill. App. Ct. 1943)

50 N.E.2d 127

Opinion

Gen. No. 42,149.

Opinion filed June 30, 1943. Rehearing denied August 9, 1943.

1. SAVING QUESTIONS FOR REVIEW, § 70.1^_ — necessity of making objection in trial court. On appeal from foreclosure decree, reviewing court would not consider objection which defendants did not raise before trial court.

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

2. FORECLOSURE OF MORTGAGES, § 127^fn_ — when court had power over foreclosure action. On appeal from foreclosure decree, wherein defendants contended that trial court had no jurisdiction to enter decree, held trial court had power over foreclosure action, defendants answered and the court will not search the record for jurisdictional defects.

3. COSTS, § 105^fn_ — when damages would not be allowed on ground of prosecuting appeal for delay. On appeal from foreclosure decree, plaintiff would not be allowed damages under statute providing for damages when appeal is taken for delay where it did not appear to court's satisfaction that appeal was prosecuted for delay (Ill. Rev. Stat. 1941, ch. 33, par. 23; Jones Ill. Stats. Ann. 107.060).

Appeal by defendants from the Circuit Court of Cook county; the Hon. CORNELIUS J. HARRINGTON, Judge, presiding. Heard in the third division of this court for the first district at the February term, 1942. Decree affirmed. Opinion filed June 30, 1943. Rehearing denied August 9, 1943.

ANDREW PETTINGER, of Chicago, for appellants.

WILLIAM JAFFE, of Chicago, for appellee; HARRY JAFFE, of Chicago, of counsel.

MR. JUSTICE KILEY delivered the opinion of the court.

This is an appeal by defendants from a foreclosure decree.

The decree was based on findings of a special master and defendants' only objections to the master's report were to the findings, in plaintiff's favor, on the defense of fraud. No point is urged here based on those objections or that defense. All points (except one) made here are based upon matters to which defendants did not object. We cannot consider those points. Moulding-Brownell Corp. v. Delfosse Const. Co., 304 Ill. App. 491, and Kraus Bond Mortgage Organization v. Vicari, 300 Ill. App. 192. The excepted point is jurisdictional. Defendants contend the trial court had no jurisdiction to enter the decree. The trial court had power over the foreclosure action and defendants answered. Defendants' briefs and argument do not point out, and we shall not search the record for, the alleged jurisdictional defects.

For the reasons given the decree is affirmed, but since it does not appear to our satisfaction that the appeal was prosecuted for delay, we shall not allow plaintiff's damages under ch. 33, sec. 23, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 107.060].

Decree affirmed.

BURKE, P.J., and HEBEL, J., concur.