{
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  "name": "In re Estate of Joseph J. Lough, Deceased. On Appeal of George Hoover and Mary Hoover",
  "name_abbreviation": "In re Estate of Lough",
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  "casebody": {
    "judges": [
      "BUBMAN and MUBPHY, JJ., concur."
    ],
    "parties": [
      "In re Estate of Joseph J. Lough, Deceased. On Appeal of George Hoover and Mary Hoover."
    ],
    "opinions": [
      {
        "text": "MR. PRESIDING JUSTICE KILEY\ndelivered the opinion of the court.\nPlaintiffs appeal from an order of the circuit court dismissing the Executor\u2019s appeal from the probate court over their objection. No brief has been filed in this court by the Executor.\nGeorge and Mary Hoover filed their amended quantum meruit claim for $4,821.20 against the Lough Estate. The probate court allowed the claim for $792.00 and the Executor filed an appeal from that order to the circuit court where he demanded, and later waived, jury trial. Plaintiffs also demanded a jury trial, after filing a second amended claim for $4,150.00 plus \u201cdisbursements.\u201d\nIn the trial de novo plaintiffs presented their evidence before the jury, and at the close of their evidence the Executor moved for a directed verdict. The motion was denied and he offered no evidence. He then moved to dismiss his appeal. The motion to dismiss was sustained and the cause dismissed at his costs.\nThe question is whether the trial court erred in dismissing the appeal.\nPlaintiffs contend that a proceeding de novo in the circuit court on appeal from the probate court is in fact a new trial as though no trial were ever held in the probate court. We think that this contention, drawn from the language of Bley v. Luebeck, 377 Ill. 50, 35 N.E.2d 334 (1941) and Schwartfager v. Schwartfager, 330 Ill. App. 111, 70 N.E.2d 216 (1946), is too broad. We disagree that the trial de novo must proceed as though there has been no prior proceeding. The probate court judgment does not become a nullity for all purposes \u201cmerely because it is reviewed\u201d by trial de novo in the circuit court. Leonhart v. Reighard, 409 Ill. 544, 549, 100 N.E.2d 657 (1951) (citing Bley v. Luebeck, 377 Ill. 50, 35 N.E.2d 334). One well known limitation on this is that a trial de novo is limited to the issues tried in the probate court. Ibid. And the judgment of the court below is the basis of the jurisdiction of the reviewing court. Ibid.\nWe believe that the appeal from the probate court to the circuit court is analogous to an appeal to this court in the sense that the party taking the appeal is the appellant and the party not appealing is the appellee. We think this view is supported by the implication in the recent amendment to the Probate Act, providing for direct appeal by an aggrieved party to the Appellate or Supreme Court in a proceeding involving an amount in controversy of $3,000.00 or more. 111. Rev. Stat., ch. 3, \u00a7 483 (1959). The statute places more significance in a judgment of the probate court than plaintiff\u2019s contention admits.\nWe agree that the circuit court on appeal is not a court of error which can expressly reverse or affirm a probate court order. Nevertheless, the proceeding in the circuit court is designated an \u201cappeal\u201d in the Probate Act. And the court in Bley v. Luebeck, cited by the plaintiff, points out that \u201cby section 330 the jurisdiction conferred on circuit courts in matters of probate is appellate only.\u201d 377 Ill. 50, 59, 35 N.E.2d 334 (1941). See also Brooking v. Brooking, 391 Ill. 440, 444, 63 N.E.2d 476 (1945). Furthermore, the effect of the dismissal by the party appealing is to restore the efficacy of the probate court order. Senn v. Gruendling, 218 Ill. 458, 75 N. E. 1020 (1905).\nHere, the Executor initiated the appeal which brought the proceeding to the circuit court, and he thus assumed the position of appellant. The Hoovers, taking no appeal, assumed the position of appellees and not cross-appellants. Therefore, the Executor was left with \u201ca right to control his appeal and to dismiss it at pleasure.\u201d Greene v. Hitchcock, 139 Ill. App. 408, aff\u2019d 235 Ill. 298 (1908). \u201cThe appellant had an undoubted right to dismiss his appeal. If the appellee was not satisfied with the judgment ... he should have himself taken an appeal. By not doing so he acquiesced in that judgment, and must now be content with it. Taking an appeal by one party does not deprive the other of the right to do the same thing.\u201d Bacon v. Lawrence, 26 Ill. 53 (1861). That was said of an appeal from a judgment of a Justice of the Peace but applies with equal force to an appeal from the probate court. In re Estate of Boening, 274 Ill. App. 434 (1943). The contemporary method of appeal provided for in the Administration of Estates Act is similar to that provided in the Justices of the Peace Act in 1934.\nWe think the motion to dismiss was addressed to the court\u2019s discretion under the circumstances of this case, and that there was no abuse of discretion in allowing the motion and dismissing the appeal.\nWe need consider no other point.\nThe judgment of the circuit court is affirmed.\nAffirmed.\nBUBMAN and MUBPHY, JJ., concur.",
        "type": "majority",
        "author": "MR. PRESIDING JUSTICE KILEY"
      }
    ],
    "attorneys": [
      "J. Y. Schaffenegger, of Chicago (William J. Sheridan, Jr., of counsel) for appellants.",
      "No brief filed by executor."
    ],
    "corrections": "",
    "head_matter": "In re Estate of Joseph J. Lough, Deceased. On Appeal of George Hoover and Mary Hoover.\nGen. No. 48,103.\nFirst District, First Division.\nDecember 12, 1960.\nJ. Y. Schaffenegger, of Chicago (William J. Sheridan, Jr., of counsel) for appellants.\nNo brief filed by executor."
  },
  "file_name": "0128-01",
  "first_page_order": 138,
  "last_page_order": 141
}