APPEAL from the Superior Court of Cook County; the Hon. NORMAN
C. BARRY, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
The plaintiffs, Adeline Getzelman, individually and as administrator of the estate of Alfred Sodman, deceased, Robert Getzelman, and Dorothy Sodman brought this action in the superior court of Cook County against Leona Koehler and Theodore Koehler, her husband, for partition of certain real estate owned by Adeline Getzelman and Leona Koehler, as tenants in common, and against others who are not involved in this appeal, to quiet title to such real estate. The defendants appeal from the decree of partition finding the rights of the parties and appointing commissioners, the decree amending and approving the master's report of proposed distribution of costs, and the order sustaining the plaintiffs' motion to strike the counterclaim of the defendant. A freehold is involved.
The evidence reveals that Alfred W. Sodman died intestate in November, 1949, leaving Louise Sodman, his widow, and Adeline Getzelman, Dorothy Sodman, and Leona Koehler, his children, as his only heirs-at-law. At his death, the widow became vested with an undivided 1/3 interest and each daughter became vested with an undivided 2/9 interest in 110 acres of vacant land situated in Cook County, which land is the subject of this controversy.
In May, 1952, Louise and Dorothy Sodman and Adeline Getzelman joined in a deed conveying their interests in the real estate to a strawman, who reconveyed to these three as joint tenants. Louise Sodman died in April, 1954, and shortly thereafter Dorothy Sodman conveyed her interest to Adeline Getzelman, who thereby became the legal owner of an undivided 7/9 interest therein.
In December, 1954, the partition complaint was filed. The defendants answered denying the material allegations of the complaint and filed two special defenses which are not involved in this appeal. They also filed two counterclaims the first alleging Adeline Getzelman holds money from certain bank accounts in trust for the defendant Leona Koehler, and the second alleging that Adeline and Dorothy Sodman each hold an undivided 1/18 interest in the 110 acres as constructive trustees for the defendant Leona Koehler. The plaintiffs replied to the special defenses and moved to strike the counterclaims. The court on December 7, 1955, referred the cause to the master in chancery.
The master filed his report finding that the interests of the parties as set forth in the complaint had been proved and recommended a decree for partition in accordance therewith. The defendants filed objections to this report, which were overruled and ordered to stand as exceptions. On October 22, 1956, the court entered its decree which overruled the exceptions of the defendants, approved and confirmed the master's report, ordered partition of the real estate and appointed commissioners to make the partition.
A decree confirming the report of the commissioners was entered on February 14, 1957. The commissioners found the real estate susceptible of division and partition, and partitioned the land between the parties, 7/9 thereof to Adeline Getzelman and 2/9 thereof to Leona Koehler. The defendants do not complain of nor appeal from the decree confirming the commissioners' report.
The cause was re-referred to the master for a hearing as to the distribution of fees and expenses and as to rents due, if any. The master's report on accounting was filed and the defendants' objections thereto were ordered to stand as exceptions. On November 5, 1957, the court entered its decree approving and confirming the master's report after reducing the amounts found by the master to be due as rents from the defendants and attorneys' fees.
Plaintiffs contend that the decree of October 22, 1956, was a final and appealable decree and, therefore, since defendants' notice of appeal was not filed until November 25, 1957, we have no jurisdiction to review this decree under section 76 of the Civil Practice Act. (Ill. Rev. Stat. 1957, chap. 110, par. 76.) They cite as authority for their contention a number of decisions which hold that a decree for partition which settles the interests of the parties and appoints commissioners is a final and appealable decree even though the cause is thereafter referred to a master to state an account. (Altschuler v. Altschuler, 399 Ill. 559; Rabe v. Rabe, 386 Ill. 600; Hardin v. Wolf, 318 Ill. 48.) Consideration must be given to the effect, if any, of subsequently enacted section 50(2) of the Civil Practice Act. (Ill. Rev. Stat. 1957, chap. 110, par. 50(2).) The question of whether the partition decree is final and appealable is controlled by the Civil Practice Act since the Partition Act (Ill. Rev. Stat. 1957, chap. 106,) makes no provision therefor and section 28 thereof (par. 71) provides that the Civil Practice Act shall apply.
In Ariola v. Nigro, 13 Ill.2d 200, we stated that section 50(2) is applicable to a final judgment or decree rendered in a multiple-claims action when the judgment or decree determines fewer than all the rights and liabilities in issue or fewer than all of the matters involved in the case. Applying this rule in Hanley v. Hanley, 13 Ill.2d 209, we dismissed an appeal from a decree which resolved with finality the title to certain real estate based on the fact that there was an undisposed-of accounting issue and that there was no express finding by the court that there was no just reason for delaying appeal from the decree. In accordance with the views expressed in the Ariola and Hanley cases we hold that the partition decree of October 22, 1956, although final, was not appealable at that time because it determined fewer than all the rights and liabilities in issue and the trial court had not made the necessary express finding.
It might be argued that since in partition cases the accounting is controlled by the interests of the parties as found in the partition decree, immediate appeal should be allowed therefrom. The answer is simply that section 50(2) merely fixes the procedure for determining when an appeal may be taken. A party, wishing to appeal from a partition decree before disposition of an accounting or other issue, should move the trial court to make an express finding in its decree that there is no just reason for delaying appeal therefrom.
Since the decree of October 22, 1956, was not appealable at that time, it is now proper to consider the alleged errors therein. The defendants contend that the court erred in overruling its exceptions to the master's report of partition in that no evidence was allowed to be heard to sustain the allegations of their counterclaims. They argue that since there was no hearing or adjudication of the matters raised by the counterclaims, no valid decree finding the interests of the parties could be entered.
It was proper for the defendants by their second counterclaim to ask for a constructive trust to be declared and enforced on the property sought to be partitioned. (Stelling v. Stelling, 323 Ill. 122.) The defendants had a right to have the issues raised by this second counterclaim heard and adjudicated before a decree of partition was entered, since it went to the question of the interests the parties have in the land. Grote v. Grote, 275 Ill. 206.
At the hearing before the master on the question of partition the defendant Leona Koehler testified: "My sister [Dorothy] said that I was entitled to my part of the farm as well as the other two [Dorothy and Adeline], and that they would see to it that I would get it." Questions such as: "Did your sister say * * * that she was holding her interest in trust ____," were not allowed because they were leading. The defendants' attorney also attempted to prove the allegations of the second counterclaim by the testimony of Adeline Getzelman and Dorothy Sodman, who were called under section 60 as adverse witnesses, but their testimony completely negated the allegations of the second counterclaim. Thus, defendants' contention that no evidence was allowed to be heard to sustain the allegations of their second counterclaim is not sustained by the record. Nor can we agree that there was no adjudication of the matters raised by the second counterclaim. It is true that the decree made no express ...