224 Ill. 490 | Ill. | 1906

Mr. Chief Justice Scott

delivered the opinion of the

court:

Manifestly, the judgment of the Appellate Court reversing the cause was based upon the finding of facts above set out. The facts so found related solely to the question whether the amended counts stated a cause of action different from that set up in the original and additional counts, that being the question presented by the demurrer to the plea of the Statute of Limitations filed herein, and when the judgment and finding of facts are considered together it seems apparent that the Appellate Court reversed the judgment of the superior court on the ground that the cause of action set up in the amended counts was not the same cause of action stated in the original and additional counts, and that as the amendments were not made until more than two years after the cause of actioñ stated by the amended declaration had accrued, the Statute of Limitations, which was set up by .the defendant’s plea, was a bar to the action.

The question presented by the demurrer to the plea of the Statute of Limitations was one of law, viz., whether the amendments to the original and additional counts introduced another and different cause of action from that set up in those counts as originally filed. That question of law, upon the demurrer, could only be determined by an inspection of the original and amended declarations. Plaintiff concedes that by language used in the various counts the defective sidewalk is located in one place by the original and additional counts and in another place by the amended counts.

We are of opinion that a cause of action was stated by the amended counts other and different from that stated by the original and additional counts. As suggested by the Appellate Court, there might be no sidewalk in one place and consequently no duty in reference to its repair, while there might be a sidewalk in the other place with a duty-regarding its maintenance.

In the case of Chicago City Railway Co. v. McMeen, 206 Ill. 108, to which our attention has been called, the wrong charged consisted in negligently managing and controlling a certain train of street cars in such a manner that it ran into another street car upon which the plaintiff was a passenger, causing the injury complained of, and that negligence was the same whether ;t occurred on State street, as charged by the original declaration, or on Cottage Grove avenue, as charged by the amended declaration. Here the negligence averred consisted in a violation of the duty to properly maintain a sidewalk. Neglect to keep a sidewalk in repair at one place is not the same wrong as neglect to keep a sidewalk in repair at another place, and this case is therefore readily distinguished from the McMeen case. The act of negligence charged by the original and additional counts in the case at bar is a different act of negligence from that charged by the amended counts. This precise question" does not seem to have heretofore arisen in this State, but in the consideration of an analogous proposition the court of last resort in Vermont reached a conclusion in accord with that above stated. Derragon v. Rutland, 58 Vt. 128.

No replication was filed to the plea of the Statute of Limitations. The trial court sustained a demurrer to that plea and no leave was obtained to plead over. There was, therefore, no issue of fact in the trial court involving the Statute of Limitations. Section 88 of chapter no, Hurd’s Revised Statutes of 1905, only authorizes the Appellate Court to recite in its final order, judgment or decree the facts as found by it, where the final determination of a cause “shall be made by the Appellate 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.” The words “matter in controversy,” in this section, mean matter of fact in controversy. The Appellate Court is not authorized to make a finding of facts that is not responsive to any issue of fact raised in the trial court, and upon such finding of facts reverse the judgment of the lower court without remanding the cause. The trial court did not make, and could not have made, any finding of facts whatever in relation to whether the defective sidewalk described in the original and additional counts was located at the same place as the defective sidewalk described in the amended counts, as no such question of fact was presented in that court, and it follows, as a matter of course, that the recital of facts contained in the final judgment of the Appellate Court is not, within the meaning of the statute, “different from the finding” of the superior court.

If the ground upon which the Appellate Court reached its judgment was, as seems evident, that the plea of the Statute of Limitations presented a good defense, that court should have reversed the judgment of the superior court and remanded the cause, with directions to the lower court to overrule the demurrer to that plea. If the Appellate Court reached its judgment, however, by reason of a finding of facts, on any issue of fact which was joined in the superior court, different from the finding of the superior court, then such finding on that issue of fact should be recited in the judgment of the Appellate Court.

Inasmuch as the finding of facts of the Appellate Court was one which that court had no power to make; and inasmuch as the judgment of that court is not warranted by that finding, that judgment will be reversed and the cause will be remanded to the Appellate Court for further consideration of the errors assigned by the city of Chicago in that court, and for the entry of such judgment, not inconsistent with this opinion, as to the Appellate Court may seem just.

Leave is given to withdraw the record of the superior court filed in this court for the purpose of re-filing it in the Appellate Court. D , , , ,

D , , , , Reversed and remanded.