52 N.E.2d 247 | Ill. | 1943
This is a writ of error to review the action of the Appellate Court for the First District denying plaintiff in error's petition for leave to appeal from an order of the superior court of Cook county granting defendant in error's motion for a new trial from a jury verdict of not guilty in a death case. The defendant in error, Frances Baumgardner, joined in one suit causes of action for herself, individually, to recover damages for her personal injuries, and as administratrix of the estate of her deceased husband to recover damages for the wrongful death of said husband, sustained as the result of a collision between an automobile driven by her husband, in which she was a passenger, and an automobile driven by plaintiff in error.
The causes of action were tried together before a jury which returned a verdict in favor of the plaintiff, Frances Baumgardner, individually, in her suit for personal injuries, assessing her damages in the sum of $5000, and returned a verdict finding the defendant, Paul Boyer, not guilty in the death case. The defendant in error (designated in this case as plaintiff) filed no motion to set aside the verdict in the injury case but did file such motion in the death case. The trial court granted plaintiff's motion for a new trial in the death case. The defendant then filed, in the Appellate Court, a petition for leave to appeal from the order granting the new trial, which petition for leave to appeal was denied. Thereupon plaintiff in error *586 (referred to as the defendant in this case) sued out this writ of error from this court.
The errors relied upon for reversal are as follows: "The denial by the Appellate Court of plaintiff in error's petition for leave to appeal under the record presented was an arbitrary edict of said Appellate Court, which denied plaintiff in error an appeal under a statute obviously designed to permit him an appeal, and, as such, denied plaintiff in error due process of law under Section 2 of Article II of the Constitution of Illinois and Section 1 of the 14th Amendment to the Constitution of the United States."
The petition for leave to appeal was filed under section 77 of the Civil Practice Act, (Ill. Rev. Stat. 1941, chap. 110, par. 201,) which regulates the procedure for appeals from orders granting a new trial. This section provides that an order granting a new trial shall be deemed to be a final order, but no appeal may be taken therefrom except on leave granted by the reviewing court or by a judge thereof in vacation. Rule 30 of this court, further providing the procedure to be followed on filing an application for leave to appeal, specifically states, "The ruling of the reviewing court upon a petition for leave to appeal from an order granting a new trial, shall be final."
Prior to the passage of the said section 77, and the adoption of Rule 30 by this court, the granting of a new trial was not deemed to be a final order, and no review of the same was possible. It may well be inferred that the legislature enacted the said section to prevent hasty and perhaps arbitrary action on the part of trial courts, and to preserve to a litigant a verdict which was sustained by the record and supported by the testimony in the case. In this case the defendant complains bitterly of the reasons assigned by the trial court for granting a new trial, but under section 77 he was given a chance to have the action of the trial court, and in fact the entire record insofar as it relates to the motion for new trial, *587 reviewed by the Appellate Court, on its petition for leave to appeal. Provision is made for the filing of briefs by all the parties interested and an opportunity to be heard on every phase of the petition for leave to appeal. The same section of the statute which provides for this additional means of protecting a verdict against an erroneous ruling by a trial court makes the decision of the reviewing court final.
After availing himself of this additional opportunity to protect and enforce his rights, the defendant now says he has been denied due process of law as guaranteed to him under section 2 of article II of the constitution of Illinois and section 1 of the fourteenth amendment to the constitution of the United States.
The plaintiff insists that the constitutional requirements of "due process" are fulfilled when there has been an orderly proceeding wherein the defendant is served with notice and has an opportunity to be heard and to enforce and protect his rights before a tribunal having power to hear and determine the cause; that "due process" is not a guarantee of any particular decision or even a guarantee against an erroneous or unjust decision. InValerius v. Perry,
Defendant does not deny the soundness of such law as applied to the cases cited but contends that the doctrine is inapplicable here because there is in this case involved the denial of an appeal, and that defendant is seeking a hearing upon the merits on appeal. He has cited many cases in support of this view which he says are not answered in the brief of the plaintiff.
In People ex rel. Dombroski v. O'Connell,
In Boykin v. Huff,
In United States ex rel. v. Mills, 21 Fed. Supp. 616, a writ ofhabeas corpus was issued in the district court of Pennsylvania on the averment that the relator was in custody in violation of the fourteenth amendment to the constitution of the United States. The relator as defendant in a criminal case had been acquitted in the State court but the trial judge concluded he was not a person of good fame, and likely to endanger public peace, and under the terms of a statute of that State ordered him to enter bail in the sum of $25,000 to keep the peace, and, on failure to enter bail, he was committed to the county jail. The Federal district court merely held that it was the duty of the relator to present his case to the appropriate State appellate tribunal before he may ask the Federal courts to intervene.
In State ex rel. Hahn Co. v. Anderson,
Defendant asserts that it was the intention of the legislature by the passage of section 77 of the Civil Practice Act to secure to the aggrieved party the right to have his petition for leave to appeal granted or denied by the Appellate Court in the exercise of sound judicial judgment guided by rules of law. We believe that the defendant in this case has had the benefits of all the rights accorded to him under the laws of the State of Illinois concerning the review of a ruling on a motion for new trial. In Scott v. Freeport Motor Casualty Co.
In the case of Wettaw v. Retail Hardware Mutual Fire Ins. Co.
Under the terms of section 77, we believe it was the intention of the legislature that no appeal should be taken from an order granting a new trial except in the manner prescribed by section 77 and in accordance with Rule 30 of this court.
It is our opinion that the defendant has not been denied due process of law and that no debatable constitutional question is involved in this case.
The writ of error will therefore be dismissed.
Writ of error dismissed.