Appellant filed his bill to enjoin a sale under the power contained in a mortgage executed by him to appellee Baker on the 17th day of December, 1877, to secure two notes of even date for $500 each, payable in five years with interest annually at ten per cent.
With all necessary specification it charged fraud and usury in antecedent dealings out of which the mortgage grew, whereby it was alleged, he had largely overpaid all his indebtedness, including said notes, to the defendants or either of them, and prayed, besides the injunction, a reference to the master to take and report the proofs and state the account, and that upon the coming in of such report and statement, the said mortgage and notes be decreed to be canceled and the defendants or one of them to pay him whatever sum should be found to be his due, and for such other, further or different relief as his case should require. Upon the bill, without notice to the defendants, the injunction was allowed.
They filed separate answers and moved thereon to dissolve it; which motion being heard in vacation, upon the pleadings, documents and affidavits, was sustained, and afterwards upon filing the judge’s order it was by the court ordered that said injunction be dissolved pursuant thereto, and that defendants recover their costs.
From this order complainant prayed an appeal, and upon the record brought here, which contains a bill of exceptions showing the evidence produced and offered and the proceedings had upon the hearng of said motion, assigns for error the exclusion of certain notes and indorsements offered in evidence on said hearing, and the order above set forth.
We find that the arguments here are addressed to the questions of fact preserved by the pleadings, and the legal effect of the evidence introduced and offered on the hearing of said motion.
But these questions we are not at liberty now to consider. The injunction of the sale is not the only relief sought. The bill has not been dismissed nor even demurred to, but fully answered as stating a case prima facie entitling complainant to all he asks. The cause is still pending in the circuit court to be there tried upon the several issues joined, and the point of appellant’s complaint here is that the injunction was not continued in force until the final hearing. It is manifest therefore that the order of dissolution was not a disposition of the case, nor final in any such sense as to make it the subject of an appeal. Cornelius v. Coons, Breese (Beecher’s Ed.) 37; McKinstry v. Pennoyer, 1 Scam. 319; Titus v. Mabee, 25 Ill. 259; Knapp v. Marshall, 26 Id. 63; Weaver v. Poyer, 70 Id. 567; Prout v. Lomer, 79 Id. 331.
So, also, the award of costs to the defendants is still within the power of the circuit court to deal with on final hearing, as equity shall demand.
The appeal must be dismissed.
Appeal dismissed.