{
  "id": 872849,
  "name": "The People, etc., for use of Minnie Phillips v. Olaf F. Severson",
  "name_abbreviation": "People ex rel. Phillips v. Severson",
  "decision_date": "1904-04-12",
  "docket_number": "Gen. No. 11,021",
  "first_page": "496",
  "last_page": "498",
  "citations": [
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      "type": "official",
      "cite": "113 Ill. App. 496"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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    {
      "cite": "184 Ill. 81",
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      "cite": "35 Mo. 190",
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    {
      "cite": "33 Mo. 117",
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      "reporter": "Mo.",
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  "last_updated": "2023-07-14T15:22:42.184794+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The People, etc., for use of Minnie Phillips v. Olaf F. Severson."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Baker\ndelivered the opinion of the court.\nDefendant in error here moves that the \"writ of error be dismissed because the judgment of the Circuit Court is not a final judgment. The judgment entry in the record is as follows : \u201c This cause coming to be heard upon the demurrer to the declaration filed in said cause, after arguments of counsel and due deliberation by the court, said demurrer is sustained, whereupon the plaintiffs elect to stand by their declaration. Therefore it is considered by the court that the defendant do have and recover of the plaintiff his costs and charges in this behalf expended and have execution therefor.\u201d The question whether the above entry is a final judgment, on which error or appeal will lie, is one of some importance, especially in view of the other defective and informal entries, intended no doubt to be entries of final judgments for defendants, which we have found in the records brought before us for review.\nThe form of a final judgment for the defendant, whether upon verdict or upon demurrer to the declaration or replication, is, \u201c Therefore it is considered that the said (plaintiff) take nothing by his suit and that the said (defendant) do go thereof without day.\u201d Arch bold\u2019s Forms, 129, 299. In the judgment entry in this case there is neither the nil capiat, nor the eat inde sine die, nor any equivalent words, or words which can be held to import the dismissal of the suit or the discharge of the defendant. In Young v. Stonebreaker, 33 Mo. 117, an entry reciting that the demurrer of defendant to the petition was sustained, followed by a judgment for the defendant and against the plaintiff for costs, was held not to be a final judgment, and so not appealable. In Adams v. Trigg, 35 Mo. 190, the record showed a verdict for the defendant, and a judgment in his favor and against the plaintiff for costs, and it was held that there was no final judgment and the writ of error was dismissed. \u201c The sustaining of a demurrer, though it be directed to the very elements of the cause of action or to the defence, is not final. In the former case the judgment of dismissal, and in the latter, the judgment for the amount sought to be recovered is yet to be entered.\u201d 13 Am. and Eng. Encyc. of Law, 24. \u201c A judgment which merely awards costs to the defendant, without more, is not a final judgment. In order to have that character it must profess to terminate and completely dispose of the action. Hence, if for the defendant, the final judgment must state that he is dismissed without day, or that it is considered that the plaintiff take nothing by his suit, or otherwise refer to the disposition made of the subject-matter.\u201d 1 Black on Judgments, sec. 31. In Knapp v. Marshall, 26 Ill. 63, an appeal was taken from an order sustaining a demurrer to a bill and the appeal was dismissed. In the opinion Judge Breese said : \u201c A complainant willing to rest his case upon a demurrer must move the court to dismiss the bill. This is final and appeal or error will lie. A decision on the demurrer is merely interlocutory.\u201d In Benevolent Association v. Farwell, 5 Ill. App. 240, a demurrer to a petition for mandamus was sustained and an appeal taken, and the appeal was dismissed because the judgment was not final. In Metzger v. Morley, 184 Ill. 81, there was a verdict for plaintiff for $1,521.09, and a motion by defendant for a new trial. The clerk\u2019s entry in the record was as follows : \u201c And the court having heard the motion, court overruled the same, and judgment on the verdict of $1,521.09,\u201d and then followed the prayer for, and allowance of an appeal. The Supreme Court affirmed the order of the Appellate Court dismissing the appeal, upon the ground that such an entry was not a judgment.\nThe entry in this case recites an election by the plaintiff to stand by the declaration, but such election only authorized the court to enter a final judgment and cannot be held to have the effect or take the place of such judgment. The entry also contains a judgment against the plaintiff for costs, but this does not show that the judgment was a final judgment. In Lee v. Yanaway, 52 Ill. App. 23-25, Mr. Justice Boggs said : \u201c That a judgment is final, is not to be determined inferentially from the mere fact that costs and execution thereof are adjudged against one of the parties. The costs are regulated by statute and follow as an incident to final judgment, but the character of a judgment, whether final or interlocutory, is to be determined from other considerations than that it awarded costs. It must, to be final, terminate and completely dispose of the action.\u201d The judgment entry in the record before us does not dismiss the defendant without day; does not adjudge that the plaintiffs take nothing by their writ or their suit; does not dismiss or put an end to the suit, and must be held to be an interlocutory, and not a final judgment; and the writ of error must be dismissed, for want of jurisdiction, at the costs of Minnie Phillips, for whose use the suit was brought, with leave to her to withdraw the record and to either party to move for judgment in the Circuit Court.\nWrit of error dismissed.",
        "type": "majority",
        "author": "Mr. Justice Baker"
      }
    ],
    "attorneys": [
      "Churchill, Tillsok & Waite, for plaintiff in error.",
      "William Chones, for defendant in error."
    ],
    "corrections": "",
    "head_matter": "The People, etc., for use of Minnie Phillips v. Olaf F. Severson.\nGen. No. 11,021.\n1. Final judgment\u2014what essential to, in action at law. It is essential to a final judgment in an action at law that it have either a nil capiat or an eat inde sine die, or equivalent words.\n3. Final judgment\u2014approved form of, in action at lato. The following is an approved form of final judgment in- an action at law : \u201c Therefore it is considered that the said (plaintiff) take nothing by his suit and that the said (defendant) do go thereof without day.\u201d\n3. Final judgment\u2014particular form which is not a, in an action at law. The following form of judgment is not final so as to authorize an appeal : \u201cThis cause coming to be heard upon the demurrer to the declaration filed in said cause, after arguments of counsel and due deliberation by the court, said demurrer is sustained, whereupon the plaintiffs elect to stand by their declaration. Therefore it is considered by the court that the defendant do have and recover of the plaintiff his costs and charges in this behalf expended and have execution therefor.\u201d\nError to the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.\nWrit of error dismissed.\nOpinion filed April 12, 1904.\nChurchill, Tillsok & Waite, for plaintiff in error.\nWilliam Chones, for defendant in error."
  },
  "file_name": "0496-01",
  "first_page_order": 512,
  "last_page_order": 514
}