133 Ill. 627 | Ill. | 1890
delivered the opinion of the Court:
The doctrine quoted by appellant from 2 Story’s Equity Jurisprudence, (sec. 894,) that “relief in equity will be granted when the defense could not, at the time or under the circumstances, be made available at law, without any laches of the party,” does'not apply to a case where the only reason why •the defense could not be made available, was an erroneous judgment of the law court. (See 2 Story’s Eq. Jur. sec. 897.) A court of equity will not take jurisdiction of a law case to review and revise the rulings of the law court, where that court had jurisdiction. (High on Injunctions, secs. 129, 130, and cases cited in note.) Whether the appellee was estopped,by the facts alleged, from suing upon the policy, was a question that it was competent for a law court to decide. (See notes to Duchess of Kingston’s case, 2 Smith’s Lead. Cas. 711, etseq.) So, also, is obviously the question whether the damages recovered should have been reduced by reason of the clause in the policy providing that the amount to be recovered in the event of loss should be reduced pro rata by the amount of additional insurance, depending, as it does, purely upon the legal construction of the policy and the evidence of additional insurance. If that defense was not urged in the trial at law, it was manifestly through the laches of appellant, and therefore, under the authority relied upon, it can not be urged in equity.' If, however, the theory of appellant’s case be, that the money paid to Babcock was paid under mistake of facts; and that it is therefore entitled to recover it back, the remedy« at law was adequate. Assumpsit for money had and received to plaintiff’s use lies to recover back money paid under a mistake of fact. Chitty on Contracts, (11th Am. ed.) p. 904. And it is clearly within the meaning of section 29, chapter 110, .of the Revised Statutes of 1874, that such a demand may be set off against the amount claimed to be due under a policy of insurance.
But it is argued, though not alleged in the bill, that appellant was denied the right of a review of the action of the Appellate Court, in this court, by the arbitrary action of the Appellate Court in refusing to certify all of the material facts before that court. But if it shall be conceded that the contention is true, it does not follow that a court of equity has jurisdiction. The General Assembly is empowered, by section 11, article 6, of our constitution, to create inferior appellate courts, from which the records may be brought, by appeal or writ of error, to this court, “in all criminal cases, and cases in which a franchise or freehold or the validity of a statute is involved, and in such other cases as may be provided by law.” Whether, therefore, in a case other than those specifically named, the record of the Appellate Court shall be brought here for review by appeal or writ of error, and if brought, under what restrictions or limitations, depends entirely upon the enactment of the General Assembly. The records in the cases specifically enumerated come here by virtue of the constitution, and therefore they can not be. restricted or limited; but in other cases the records can not come here at all unless the General Assembly so provides, and having the power to totally exclude, the power to limit or qualify is necessarily included.
By section 88 of the Practice act, (2 gtarr & Curtis, p. 1842,} the General Assembly has provided that “if any final determination of any cause, as specified in the preceding sections, shall be made by the Appéllate Court, as the result, wholly or in part, of the finding of the facts concerning the matter in controversy different from the finding of the court from which such cause was brought by appeal or writ of error, it shall be the duty of such Appellate Court to recite, in its final order, judgment or decree, the facts as found, and the judgment of the Appellate Court shall be final and conclusive as to the matters of fact in controversy in such cause.” The recital of the facts as found, involves judgment and decision, and it is thus omade a judicial act in the case'; and it is impossible, upon principle, to hold that an error in that respect is in any manner different from an erroneous decision of that court upon any other question within its jurisdiction.
The judgment is affirmed.
Judgment affirmed.
Subsequently, on July 29, 1890, on an application for a rehearing, the following additional opinion was filed:
A petition for rehearing has been presented to us in this case, and it has received our careful consideration. We find no cause for granting a rehearing, or for modifying any of the statements of legal conclusion expressed in the opinion. It appears, however, from this petition, that in the former argument we misapprehended, to some extent, the position of counsel for appellant, and therefore, to that extent, unintentionally misstated it in the foregoing opinion. We deem it proper to here correct that error, and to briefly state our answer to what we now understand to be his contention.
Counsel does not deny the general doctrine that a court of chancery can not review the decision of a court of law, but he contends, in the present case,—first, that the Appellate Court refused to pass on the question now presented, although that question was submitted to and decided by the circuit court on the trial of the case by that tribunal, and the evidence in respect thereto was preserved in the record and before the Appellate Court; and second, that the Appellate Court refused to certify the evidence in respect to that issue to this court, and consequently that that issue has not been before this court or passed upon by it. He thereupon argues, that a court of chancery is not now asked to review the decision of a law court, but, on the contrary, that it is simply asked to decide an equitable question which a law court might have decided, but, in fact, did not decide,—which, he insists, the authorities recognize the right of a court of chancery to do. We answer: The issue, being one of which a court of law may take cognizance, having been submitted to and decided by the circuit court in the action brought in that court on the policy of insurance, it is not true that a court of law has not decided it. A court of law has decided it, and that decision is conclusive until reversed or set aside in some mode provided by statute.
The appeal presented the same issue to the Appellate Court that was presented to the circuit court, and, it is alleged in appellant’s bill, the same evidence was before that court that was before the circuit court. It necessarily follows, that if it was fairly a question whether that evidence was as contended by counsel for appellant, or only as certified by the Appellate Court, it was properly one for that court to decide; and that being so, there can be no more ground for a court of chancery to take jurisdiction because of an error in a decision in that respect, than because of an error in any other decision by a law court of a question properly before it. But if there was no question of that kind, but the court simply arbitrarily refused to pass upon the question, and arbitrarily refused to certify the evidence in respect thereto to this court, then it is clear the remedy of appellant was by mandamus to compel that court to act upon the issue, and to certify the evidence in respect thereto to this court,—and this is a complete and adequate remedy at law, and resort should have been to it, and not to a court of equity, to remedy the wrong done. And so, to conclude, in brief, if the issue has not been presented to this court, it is because of the neglect of appellant to resort to his legal remedies in that respect. If it has been presented to t'his court, it has been necessarily decided in the affirmance of the judgment of the Appellate Court,—whether rightly or wrongly, a court of chancery can not inquire; and, in either view, the decision of the court below is right.
A rehearing is denied.
Rehearing denied.
