64 N.E.2d 491 | Ill. | 1945
This writ of error is a sequel to People ex rel. Waite v.Bristow,
On January 16, 1945, Waite was granted permission to file an original petition for a writ of mandamus in this court. (Peopleex rel. Waite v. Bristow,
The opinion of this court in People v. Bristow was filed on May 23, 1945. Thereafter, on June 2, 1945, more than eighteen months after the entry of judgment in the circuit court, plaintiff filed a notice of appeal dated May 31, 1945, and a petition for leave to appeal in the Appellate Court for the Fourth District seeking a reversal of the "order, decree, judgment, and determination of the said Pulaski Circuit Court, entered June 13, 1944." This *323 petition is predicated upon the theory that it is a petition for leave to appeal filed within one year from the entry of judgment in the trial court, a theory directly contrary to the decision of this court in People v. Bristow. Waite interposed a motion to strike the petition for leave to appeal on the grounds, among others, that the Appellate Court lacked jurisdiction to grant a petition for leave to appeal unless it be filed within twelve months from the date of the entry of the judgment from which the appeal was taken; that the judgment was entered in the circuit court of Pulaski county on November 9, 1943, more than twelve months before the petition for leave to appeal was filed and, further, that this court in People v. Bristow had so decided. Suggestions and authorities were filed in support of, and also in opposition to, the motion to strike the petition for leave to appeal. Later, on July 30, 1945, the Bradford Supply Company filed a petition and motion supplemental to its petition for leave to appeal, making the petition and the record filed in its support in the Appellate Court a part of its newest petition and motion and, also, making the supplemental petition and motion a part of the petition for leave to appeal. By the petition and motion of July 30, plaintiff asked that if the Appellate Court be of the opinion that an appeal, or petition for leave to appeal, had been improvidently employed where the proper mode of review was by writ of error the cause be considered as before the court of review on writ of error. Suggestions and authorities supported the motion. Waite made a motion to strike the petition and motion of July 30. On August 3, 1945, the Appellate Court granted Waite's motion to strike the petition for leave to appeal and, also, the supplemental motion in the alternative for a writ of error. Accordingly, the petition for leave to appeal and the supplemental motion were both stricken. Plaintiff has sued out a writ of error from this court to the Appellate Court for a review of the record. *324
Waite has filed a motion to dismiss the writ of error on the following grounds: First, that the Bradford Supply Company did not raise a constitutional question in the Appellate Court; second, that the alleged constitutional question claimed by it is no longer debatable; third, that plaintiff admits the alleged constitutional question to be a construction of a statute, and consequently, not a constitutional question; fourth, that the Appellate Court, being without jurisdiction to entertain the petition for leave to appeal, was likewise without jurisdiction of the supplemental motion for writ of error and, finally, that the writ of error is based on the theory that the judgment was entered on June 13, 1944, instead of November 9, 1943, a theory contrary to the decision of this court in People v. Bristow, and, in addition, to the theory of the company itself as set forth in its first notice of appeal, filed November 27, 1943, and that it is bound by its own original notice of appeal. The motion to dismiss the writ of error has been taken with the case.
To give this court jurisdiction to review a judgment of the Appellate Court upon a writ of error, under section 11 of article VI of our constitution, a constitutional question must not only be involved but the question must have arisen in the Appellate Court for the first time. (Abrams v. Awotin,
The asserted constitutional issue is not a debatable question. Prior to the enactment of the Civil Practice Act, it is true that a litigant could obtain a review of a judgment or decree either by appeal or writ of error, or by both of these modes of appellate procedure. (First National Bank of Jonesboro v. RoadDistrict No. 8,
A primary purpose of the statute was the consolidation of the two prior methods of review. This objective has been accomplished by substituting a single form of direct review in civil cases for the two forms of direct review, namely, appeal and writ of error, previously obtaining. The substitution is not, and does not purport to be, complete. The essential attributes of writ of error and appeal are preserved in the new single form of review, and rights enjoyed heretofore under writ of error and appeal are preserved. Section 74 provides that the "notice of appeal" proceeding is to be known as an appeal. Review by writ of error is still available in certain civil cases, and the procedure previously common to writ of error and appeal has been expressly preserved by Rule 28 of this court. Indeed, when the Civil Practice Act was enacted, appeal, as it obtained under the earlier Practice Act, was specifically preserved by several independent acts which were not amended, namely, the Housing Act, the Zoning Law and the Commission Form of Government statute. Later, these three acts were amended to make their procedure on appeal conform to the Civil Practice Act. Writ of error still remains in criminal cases, although certain provisions of the Civil Practice Act with respect to review, namely, those relative to motions and briefs, abstracts, supersedeas, assignments of error, form and content of the transcript of record, are made applicable to criminal cases. In proceedings of purely statutory origin, the method of review is entirely dependent upon the provisions of the statute. If no appeal or writ of error is authorized, and neither property rights nor personal liberty are involved, a review by writ of error, or otherwise, has been uniformly denied. (Phelps v. Board of Appeals,
Plaintiff insists, however, as it did in the Appellate Court, that this cause is a case prosecuted according to the course of the common law, and that in any such case the right to review cannot be abolished by statute even if the General Assembly attempted so to do. Conceding that the right to a writ of error exists, as plaintiff urges, independently of any statutory or constitutional provisions by force of the common law, (Loomis v.Hodson,
Plaintiff persists in arguing that its petition for leave to appeal was presented within twelve months from the entry of the final determination of the cause in the circuit court. Its contention in this regard has been decided adversely to it inPeople v. Bristow. Its argument in support of its position is largely a repetition of its petition for rehearing in People v.Bristow. Apart from the fact *330
that the question is not open to consideration on the present writ of error, it may very well be observed that the Appellate Court lacked jurisdiction to hear the petition for leave to appeal for the simple reason that it was filed on June 2, 1945, nearly nineteen months after the entry of the judgment in controversy on November 9, 1943. Section 11 of article VI of our constitution providing for the creation of Appellate Courts limits their jurisdiction "to such appeals and writs of error as may be prosecuted in circuit and other courts." As we observed recently, the jurisdiction of the Appellate Court is prescribed solely by the legislature and subject only to constitutional limitations. (Scott v. Freeport Motor Casualty Co.
Plaintiff's further contention that it was entitled to pursue the remedy of writ of error because an appeal was "improvidently employed" is not well taken. Reliance upon Rules 21 of the Appellate Court for the Fourth District and 28 of our court does not aid it. We have recently *331
announced that the purpose of Rule 28, providing for the treatment of a writ of error as an appeal in certain cases, is to permit a review of a case where the parties have a right to a review by one or the other method, but it is not designed to circumvent the statute requiring the filing of a petition for leave to appeal. (Kamienski v. Bluebird Air Service, Inc.
The contention that the order of the Appellate Court striking its motion for writ of error denied plaintiff due process of law in contravention of both Federal and State constitutional guarantees does not present a constitutional question but, instead, merely the validity of the judgment order assailed.(Abrams v. Awotin,
For the reasons stated, and particularly for the reason that practically every issue presented in the present proceeding has been disposed of adversely to plaintiff in People v. Bristow, the motion to dismiss the writ of error must be, and is, allowed.
Writ of error dismissed. *332