#### Jacob Rosenberg et al. v. Hyman B. Stern et al.

Opinion filed December 21, 1898

Rehearing denied February 9, 1899.

Practice—unauthorized motion by stranger, after final decree, does not preserve court's jurisdiction. A motion entered by a stranger without authority of the court, after a final decree asking that such decree be set aside, which is continued to the following term, at which it is overruled and expunged from the record, does not keep the cause pending, so as to entitle other parties at the following term, but before the motion is passed upon, to file another motion for leave to file an intervening petition.

Rosenberg v. Stern, 77 Ill. App. 248, affirmed.

Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Elbridge Hanecy, Judge, presiding.

Moran, Kraus & Mayer, for appellants.

Francis W. Walker, and Flower, Smith & Musgrave, for appellees.

Mr. Justice Wilkin

delivered the opinion of the court:

In a chancery suit entitled Stern et al. v. Willoughby, Hill & Co., a corporation, a final decree was entered on April'17, 1897, at the March term of the circuit court of Cook county. On that day Max Hart, of the firm of Hart, Schaffner & Marx, (it not appearing that said firm were interested whatever in the proceedings,) made a motion in the cause to set aside the decree, which motion was entered and continued to the next term. On May 17, 1897, being the first day of the May term following, Jacob Rosenberg et al., who are appellants here, moved the court for leave to file an intervening petition, in response to which an order was entered that the motion previously entered by Hart to set aside the decree should not be dis*438posed of or withdrawn without at least one day’s notice to Moran, Kraus & Mayer, solicitors for appellants. On May 24 thereafter, the motion of Hart to set aside the decree was argued and overruled and subsequently his motion expunged from the record, and on the same date (May 24) an order was entered overruling the motion of appellants for leave to file an intervening petition, to which latter ruling appellants excepted. From the order denying leave to file the intervening petition an appeal was prayed to the Appellate Court for the First District, where the action of the circuit court was affirmed. The cause is brought here upon further appeal.

The contention of appellants is, that the decree of April 17 was not final; that the motion of Hart to set aside the decree, upon which a continuance was taken to the next term, kept the cause still pending, and therefore the motion of appellants for leave to file an intervening petition, though at a subsequent term, was made in apt time. The decree clearly purports to dispose of the matters involved in the chancery suit upon their merits, leaving nothing to be judicially determined between the parties. That it was a final decree cannot be questioned. It being a final decree, the question then is, did the motion of Hart, which was continued to a subsequent term, keep the cause open sufficiently to preserve appellants’ right to make the motion contended for? Under the facts appearing from the record the affirmative of this proposition cannot be maintained, for the reason that Hart’s motion appears to have been improperly entered of record, it being entered without the direction or authority of the court, and for that reason the order continuing the motion of Hart was, on September 28, 1897, expunged from the record. The action of the court in expunging that order from the record, and also overruling Hart’s motion, is not open to review by us, no error being assigned raising that question. Appellants’ motion, depending, as it did, upon the validity of the motion *439of Hart, when the court overruled the latter, was necessarily overruled. Under this state of facts, even supposing appellants’ petition set forth a meritorious cause of action, the application, having been made a-fter the term at which the final decree was rendered, was not made in apt time, the jurisdiction of the court having ceased, and appellants’ application was therefore properly disallowed.

This appeal, being solely from the order denying the application of appellants to file the intervening petition, does not involve matters set forth in the decree, and they are not before us for review.

The action of the Appellate Court affirming- the order of the circuit court of Cook county in this cause is afín med.

Decree affirmed.