From Casetext: Smarter Legal Research

Lewis v. Hill

Appellate Court of Illinois, Third District
Feb 29, 1944
322 Ill. App. 68 (Ill. App. Ct. 1944)

Opinion

Gen. No. 9,413.

Opinion filed February 29, 1944.

APPEAL AND ERROR, § 1853affirmance where no reviewable question exists. Where cause on former appeal was reversed and remanded, and where parties appealed from judgment entered on remandment, and it appeared that both the facts and contentions presented therein were fully considered and passed upon in unanimous opinion of Appellate Court upon such former appeal, and no new nor different contentions were made by respective parties, and no cases nor citation of authority given, judgment entered on remandment would be affirmed.

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

Appeal by defendants from the Circuit Court of Douglas county; the Hon. WILLIAM S. BODMAN, Judge, presiding. Heard in this court at the October term, 1943. Decree affirmed. Opinion filed February 29, 1944.

NICHOLS JONES, of Tuscola, for appellants.

S.S. DuHAMEL, of Springfield, for appellee.


The same issues and assignments of error came before this court in a prior appeal in the same cause and between the same parties, which was heard and decided by this court at its February Term, A.D. 1943. The opinion therein, reported in full, appears in Lewis v. Hill, 317 Ill. App. 531, 47 N.E.2d 127. In passing upon the same contentions of the appellants herein, who were the appellees in that appeal, this court reversed and remanded the cause to the circuit court of Douglas county with instructions to overrule the defendants' motion to dismiss the amended complaint. The mandate of this court was docketed in the circuit court below and defendants were ruled to answer. On June 17, 1943, answer was filed and on June 29, 1943, judgment was entered on the pleadings against the defendants and in favor of the appellee, from Which judgment the appellants, defendants below, have perfected this appeal.

The record again raises the question of jurisdiction of the circuit court to hear the cause upon the issues framed by the pleadings; contending that sole jurisdiction thereof remained in the county court of said county and that the proceeds of the real estate devised to appellee herein and converted into personal property by judicial sale upon the petition of the conservator, now executor of the estate of the testatrix, Sarah E. Collins, has adeemed the devise to said appellee. Both the facts and the contentions presented herein were fully considered and passed upon in the unanimous opinion of this court upon the former appeal, cited supra. It is conceded that no new nor different contentions are made by the respective parties and that no new cases nor citation of authorities have been given. Upon a careful consideration of the record before us, we find no valid reason for arriving at a different conclusion upon the issues heretofore discussed and passed upon by this court.

We therefore hold: (a) that the decree appealed from was entered by the circuit court in the proper exercise of its equitable powers with jurisdiction of the parties and subject matter of the pending cause; (b) that the sale of the real estate in question did not adeem the specific devise to the plaintiff, but that the funds arising from the sale of the real estate described in said testamentary devise, being intact in the hands of the defendant executor, were impressed with an equitable trust in favor of the devisee, Edith Otter Lewis, and upon distribution of the estate of said testatrix, should be paid and distributed by the appellant executor, T.C. Hill, to the plaintiff appellee herein, under the applicable provisions of the will of said testatrix as found and decreed by the chancellor below; (c) that no prejudicial nor reversible error appears in the record and that the decree of the circuit court of Douglas county should be and is hereby affirmed.

Decree affirmed.


Summaries of

Lewis v. Hill

Appellate Court of Illinois, Third District
Feb 29, 1944
322 Ill. App. 68 (Ill. App. Ct. 1944)
Case details for

Lewis v. Hill

Case Details

Full title:Edith Otter Lewis, Appellee, v. T. C. Hill, Individually and as Executor…

Court:Appellate Court of Illinois, Third District

Date published: Feb 29, 1944

Citations

322 Ill. App. 68 (Ill. App. Ct. 1944)
53 N.E.2d 736

Citing Cases

Tompkins v. France

"Subsection (5) is new. It affords statutory recognition of the motion for judgment on the pleadings which is…

Norman v. School District No. 1

Defendant first contends that a motion for judgment on the pleadings is not a matter recognized by statute…