McGOVERN v. McGOVERN, 390 Ill. 516 (1945)

61 N.E.2d 357

PETER McGOVERN et al., Appellants, vs. JOSEPH W. McGOVERN et al., Appellees.

No. 28699. Cause transferred.Supreme Court of Illinois.
Opinion filed May 23, 1945.

APPEAL from the Circuit Court of Will county; the Hon. JAMES V. BARTLEY, Judge, presiding.

GEARY STAGMAN, of Chicago, and BARR BARR, of Joliet, (ARNOLD D. McMAHON, and JACOB STAGMAN, both of Chicago, of counsel,) for appellants.

OSCAR R. LARAWAY, and ROBERT E. HIGGINS, both of Joliet, for appellees.

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Mr. JUSTICE SMITH delivered the opinion of the court:

This is an appeal from an order of the circuit court of Will county, denying the petition of appellants to vacate two orders entered in this cause on May 3 and May 6, 1944.

On March 28, 1944, appellants filed their complaint in the circuit court of Will county, to contest and set aside the last will and testament of James W. McGovern, deceased. On April 29, 1944, a motion was filed by the defendants to dismiss the complaint. On May 3, 1944, an order was entered setting said motion to dismiss for hearing on May 6, 1944. On May 6, 1944, the court heard the motion and dismissed the complaint. On September 21, 1944, appellants filed a petition to vacate the orders of May 3 and May 6, 1944. On December 12, 1944, the court entered an order denying said petition. This is an appeal from that order entered on December 12, 1944.

Appellants also have pending on the docket of this court, a petition (No. 28720) for leave to appeal from said order of May 6, dismissing the complaint. The only question presented on this appeal is whether or not the court erred in denying the petition to vacate the orders of May 3 and May 6. A freehold is not involved. The only effect of vacating those orders would be to leave the cause for trial with the issues undetermined. Neither party would gain or lose a freehold by the order vacating the orders entered on May 3 and May 6, even if a freehold was involved in the original suit. (Hooper v. Wabash Automotive Corp., 365 Ill. 30.) The identical question was also involved i Frey v. Schaab, 379 Ill. 315, and Wainwright v. McDonough, 364 Ill. 626, where the same conclusion was reached.

It clearly appearing from the record that no freehold is in any way involved on this appeal, this court is without jurisdiction. The cause is transferred to the Appellate Court for the Second District.

Cause transferred.

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