{
  "id": 4955800,
  "name": "Mary L. Lambert et al. v. Frances Hyers et al.",
  "name_abbreviation": "Lambert v. Hyers",
  "decision_date": "1888-12-07",
  "docket_number": "",
  "first_page": "400",
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      "cite": "27 Ill. App. 400"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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    {
      "cite": "3 Scam. 292",
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      "reporter": "Scam.",
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  "last_updated": "2023-07-14T20:38:40.638408+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Mary L. Lambert et al. v. Frances Hyers et al."
    ],
    "opinions": [
      {
        "text": "Gary, J.\nThe former proceedings in this court in this case are shown in 22 Bl. App. 616. In accordance with the opinion there reported a supplemental bill was filed, alleging the death of Beal, and the succession of Christian to the trust, but, unfortunately, it was supposed in the Circuit Court that the cause was remanded solely to bring in the trustee.\nThe original decree was gone, by the proceedings in this court. The judgment here was that the decree \u2018\u2018be reversed, annulled, set aside, and wholly for nothing esteemed, and for the purpose of correcting the error pointed out in the opinion filed therein,\u201d the cause was remanded. The opinion filed was not the judgment of this court, but the reasons for the judgment.\nThe decree now appealed from is only upon that supplemental bill, correcting the error of not having the legal estate represented in the cause, and there is now no decree upon the merits.\nThe cause should have been wholly reheard, and a wholly new decree on the whole case rendered.\nIt seems to be the practice, approved by the Supreme Court, that under a rule to plead by a day fixed, if it is done after the day, but before default is asked, it is sufficient. \u201c It is the general practice also to consider such plea, answer or demurrer in due time, if \u2022 filed before the default is asked for.\u201d Dunn v. Keegin, 3 Scam. 292. The same rule at law, Castle v. Judson, 17 Ill. 381; Cook v. Forrest, 18 Ill. 581. The case of Flanders v. Whittaker, 13 Ill. 708, to the contrary, is in the minority.\nEven if the former decree had not been reversed here, query, whether the mere filing of the supplemental bill did not open it Gibson v. Rees, 50 Ill. 383.\nBecause there is no decree upon the merits, and because the answer of the appellants was stricken out, the decree must be reversed, and the cause remanded for further proceedings upon the whole case, with the answer of the appellants reinstated, if they wish it.\nReversed and remanded.",
        "type": "majority",
        "author": "Gary, J."
      }
    ],
    "attorneys": [
      "Mr. C. M. Hardy, for appellants.",
      "Messrs. George C. Christian and C. H. & C. B. Wood, for appellee."
    ],
    "corrections": "",
    "head_matter": "Mary L. Lambert et al. v. Frances Hyers et al.\nPractice \u2014 Reversal of Decree \u2014 Defect of Parties \u2014 \u2022Supplemental Bill\u2014 New Decree \u2014 Rule to Plead by Day Certain.\n1. Upon the reversal of a. decree by this court for defect of parties and the filing of a supplemental bill to cure such defect, a new decree on the merits is necessary.\n2. Under a rule to plead by a day fixed, it is sufficient to plead after the day so fixed, if it is done before default is asked.\n[Opinion filed December 7, 1888.]\nAppeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.\nMr. C. M. Hardy, for appellants.\nMessrs. George C. Christian and C. H. & C. B. Wood, for appellee."
  },
  "file_name": "0400-01",
  "first_page_order": 396,
  "last_page_order": 397
}