#### William H. Herdman et al. v. Samuel D. Cooper et al.

Filed at Mt. Vernon June 16, 1888.

Appeal—whether a freehold is involved—claim of exemption from levy and sale on execution. In bill in chancery to enjoin the sale of a lot levied upon by the sheriff under an execution, on the ground it was, and had been, the homestead of the complainant, and was therefore exempt, no question of freehold is involved, and no appeal or writ of error will lie, to enable the bringing of the case to this court in the first instance.

*360Writ of Error to the Circuit Court of Jefferson county; the Hon. Carroll C. Boggs, Judge, presiding.

Messrs. Pollock & Pollock, for the plaintiffs in error.

Mr. G. B. Leonard, and Mr. Albert Watson, for the defendants in error.

Mr. Justice Scott

delivered the opinion of the Court:

This writ of error must he dismissed. It is very clear no freehold is involved in the present litigation, nor, indeed, any other question that would give this court jurisdiction, in the first instance, to hear and determine the cause. It should have been taken to the Appellate Court in the proper district. It is seen the bill was simply to enjoin the sale of a certain lot that had been levied upon by the sheriff by virtue of an execution issued on a judgment in favor of one of defendants and against one of complainants, on the ground it is and has been the homestead of the execution debtor. The only question made is, whether the property is subject to the lien of the judgment, and therefore liable to sale on the execution. It has been so frequently decided by this court that no freehold is directly involved in such cases, no further discussion is necessary. Previous decisions are conclusive upon the point made in this case against the jurisdiction of this court in the first instance. Johns v. Boyd, 117 Ill. 339; Galbraith v. Plasters,. 101 id. 444.

The parties will have leave to withdraw their respective briefs, on each party paying his own costs for filing the same, and plaintiffs in error will have leave to withdraw the transcript of the record and their abstracts, on paying the costs they have made in this court, if they desire to do so, for the purpose of filing the same in the Appellate Court for a writ of error.

The writ of error will be dismissed.

Writ dismissed.