52 N.E.2d 250 | Ill. | 1943
Judgment for plaintiff in a personal injury suit was entered by the circuit court of Cook county. Defendant has appealed to this court direct because it says the judgment was taken and entered in violation of the constitutions of the State of Illinois and of the United States. Appellee replies that such constitutional questions, if any, are no longer debatable and the case should be transferred to the Appellate Court. In order to determine whether we have jurisdiction, and if so, to decide the issues, an understanding of the several proceedings thus far in the courts is necessary. The parties will be hereafter referred to as plaintiff and defendant.
The plaintiff brought suit against A.A. Sprague, Receiver for the Chicago, North Shore and Milwaukee Railroad Company, to recover for the wrongful death of Frances Goodrich on a railroad crossing in the village of Glencoe. The cause was submitted to a jury and a verdict returned in favor of the plaintiff. The defendant moved for a judgment notwithstanding the verdict, and in the alternative for a new trial. The circuit court entered judgment notwithstanding the verdict. There was no ruling upon the motion for a new trial at that time.
Plaintiff appealed to the Appellate Court, where the judgment of the circuit court was reversed and judgment entered in the Appellate Court against the defendant. On writ of error from this court to the Appellate Court the judgment of the Appellate Court reversing the judgment notwithstanding the verdict was upheld, but the cause was reversed and remanded to the trial court to pass upon the defendant's motion for a new trial. (Goodrich v.Sprague,
When the mandate of the Appellate Court in the second case was filed and motion made by plaintiff for the reinstating and redocketing of said cause, and for an order setting aside the order granting a new trial and for judgment upon the verdict, the defendant filed written objections to following the mandate of the Appellate Court, and among other objections asserted the judgment of the Appellate Court was violative of sections 11 and 12 of article VI, and Sections 2 and 5 of article II of the constitution of the State of Illinois, and of section 1 of the fourteenth amendment of the constitution of the United States. These objections were overruled by the circuit court, and judgment entered on the verdict.
Defendant asserts that in this manner it has preserved a right to appeal from the judgment of the circuit court directly to this court. The manner in which defendant has been deprived of the benefit of the provisions of the constitution invoked is thus stated in its brief: "The Appellate Court was without power to determine that the weight of the evidence was with the plaintiff upon the issue of the defendant's negligence, due care of decedent, and the amount of damages, and was without power to determine finally any matter of law relating to the merits of the case, and upon such determinations of law *203 and fact by that court, direct that the order granting a new trial be vacated." To make its point more precise it adds: "In other words in cases where the trial court should have directed a verdict as a matter of law against the party obtaining a new trial, and none other, the Appellate Court may give such directions." Perusal of the argument of appellant discloses the foregoing is an accurate resumé of the effect of the constitutional provisions invoked by it.
We have recently had before us several cases in which the constitutional questions urged by appellant, as affecting the power and jurisdiction of the Appellate Court, have been discussed, analyzed and decided. In the case of Corcoran v. Cityof Chicago,
Following the Corcoran case the first appeal in this cause came to this court in Goodrich v. Sprague,
Herb v. Pitcairn,
The Herb case follows Goodrich v. Sprague,
The last of the series of cases is Scott v. Freeport MotorCasualty Co.
From this line of recent cases it is to be seen that we have definitely held: (1) The Appellate Court has the power to overrule the trial court on questions of fact involving the granting of a new trial, (Corcoran v. City of *207 Chicago,
We have thus reviewed the recent cases because there seems to be some misconception or misunderstanding in their application to Appellate Court procedure. These cases dispose of every constitutional point made by appellant. The claim that the Appellate Court has no authority under the constitution to disturb or overrule the discretion of the trial court in granting a new trial is contrary to our holding in Corcoran v. City ofChicago,
Appellant's contention the Appellate Court exercised original jurisdiction contrary to the constitution cannot be sustained. The order of the Appellate Court provides: "The order granting a new trial is reversed and the cause remanded with directions the court set aside the order granting new trial, and for further proceedings in due course." This is exactly the form of the order we said should be entered in Scott v. Freeport Motor Casualty Co.
Appellant complains, and also urges, that because appeals may be allowed upon petition in cases where judgment of the lower court is affirmed, they should also be allowed in cases where an order allowing a new trial is reversed. The provisions with respect to each type of case are governed by statute. In the first the law provides the petition for appeal may be filed, and if allowed, may be considered by this court. Allowance of appeals is not essential to due process of law, (People ex rel. RadiumDial Co. v. Ryan,
It is finally urged at great length that the discretion vested in the trial judge to grant or refuse a motion for new trial cannot be constitutionally vested in the Appellate Court. In this appellant reargues the point decided in the Corcoran case. There is nothing presented in the present appeal on the merits that has not been presented and decided heretofore, and the questions raised are no longer debatable. *209
Appellant claims we have jurisdiction of the cause and appellee makes a motion to transfer. We do not think we have jurisdiction of the cause, not only because the questions raised are not debatable, but because we do not believe they can be raised in the manner sought by appellant. The procedure adopted, after a dismissal of its petition to appeal to this court, was to make a motion in the circuit court to disobey the mandate of the Appellate Court, and as justification for such action incorporated constitutional objections to the redocketing of the cause and the carrying out of the directions of the upper court. If a constitutional question can be raised in this way in this case it can be raised in the same manner in any other case in which the Appellate Court has reversed a cause with directions, and by the assertion of a constitutional question an appeal may be procured on a question decided by the Appellate Court, by coming from the circuit court after an appeal from the Appellate Court has been denied.
No constitutional objection to the right of plaintiff to appeal was made in the circuit court. The alleged violation of plaintiff's rights occurred for the first time when the Appellate Court rendered its opinion. Under the practice that we have heretofore approved, when such constitutional rights had then for the first time been denied, it may be reached by writ of error from this court, as pointed out heretofore in this opinion.
This case has been before the Appellate Court upon the question of entering judgment notwithstanding the verdict. The Appellate Court there reviewed the evidence and held such order should have not been entered, and we approved that part of the judgment of the Appellate Court in our first opinion. (Goodrich v. Sprague,
The petition to appeal to this court upon the action of the Appellate Court in that case was dismissed. The constitutional questions which are now urged have been settled prior to this appeal. The case of the defendant was ended when the Appellate Court in the second case held it was not entitled to a new trial. There is no provision of statute or principle of the common law that permits either party in a case such as this by another appeal to relitigate the same issues again. The case is in the same position as though both questions had been decided in the Appellate Court on one appeal, and application for review denied by this court.
It is our conclusion the constitutional points raised by appellant are no longer debatable; that since the circuit court is compelled to follow the mandate of the Appellate Court,(Lincoln Park Comrs. v. Schmidt,
Appeal dismissed. *211