Gage v. Ewing

Mr. Chief Justice Scholfield delivered the opinion of the Court:

This was a bill in equity, by appellee, against appellant, to remove two tax deeds as clouds upon his title, upon grounds sufficiently set forth in the bill. Appellant filed two pleas, the first setting up that the land mentioned in the bill was unimproved and unoccupied at the time of filing the bill, and that, because thereof, appellee had a complete remedy at law in an action of ejectment; and the second setting up, that the complainant purchased the property in question during the pendency of a bill in equity filed by his grantor, against the appellant, for the same purpose as the present bill, that the former cause was brought to issue, and the bill dismissed for want of equity, and such former adjudication is set up in bar of this suit. These pleas having been set down for argument, were overruled by the circuit court, and appellant electing to stand upon his pleas, a final decree was entered in favor of appellee. • On appeal to this court, we held the circuit court properly overruled the first plea, but that it erred in overruling the second plea, and we remanded the cause to the circuit court for further proceedings consistent with that opinion. (Gage v. Ewing, 107 Ill. 11 .) After the cause was remanded, replication was filed, and subsequently the cause was heard on bill, answer, proofs, etc., and the court decreed in conformity with the prayer of the bill, and this record is brought before us by appeal from that decree.

It appears that in this bill there is an allegation that the premises are unimproved and unoccupied, while in the bill set up in the second plea that allegation is wholly wanting; and the only question discussed upon this record is, whether, in the absence of that allegation, the suit set up in the second plea is a bar to the present suit. Our answer must be in the negative. When the suit set up in the second plea was before us, (Gage v. Abbott, 99 Ill. 366 ,) we held that because the bill failed to show that the complainant was in possession, or that the premises were unimproved and unoccupied, the decree of the circuit court granting the relief' prayed for, was erroneous,—that one or the other of these allegations was essential to give the court jurisdiction. That bill not having been subsequently amended, but dismissed in conformity with our ruling, the decree therein can not. be urged in bar of the relief sought by this bill. It contains the precise allegation because of the absence of which that bill was held to be defective. The dismissal of a bill because of some defect precluding relief, is no bar to a second bill in which such defect is cured, notwithstanding in other respects the material allegations are the same. Emory v. Keighan et al. 88 Ill. 516 ; 1 Daniell’s Chancery Practice, (Perkins’ ed.) 660.

The decree below is affirmed.

Decree affirmed.