200 Ill. 577 | Ill. | 1903
delivered the opinion of the court:
It has been repeatedly held by this court that where the Appellate Court reverses the judgment of the trial court for errors of law it should remand the case for a new trial, (Commercial Ins. Co. v. Scammon, 123 Ill. 601; Commercial Union Assurance Co. v. Scammon, 126 id. 355; Jones v. Fortune, 128 id. 518; Scovill v. Miller, 140 id. 504; Purcell Co. v. Sage, 189 id. 79; National Linseed Oil Co. v. Heath & Milligan Co. 191 id. 75;) but where it reverses the judgment because it finds the facts different from what they were found by the trial court it should make a finding of fact and recite the same in its final judgment, (Tenney v. Foote, 95 Ill. 99; Tibballs v. Libby, 97 id. 552; Fitzsimmons v. Cassell, 98 id. 332; Neer v. Illinois Central Railroad Co. 138 id. 29; Scovill v. Miller, supra;) and a case is not taken out of the general rule established by these cases because the evidentiary or probative facts are brought before the court by stipulation. (National Linseed Oil Co. v. Heath & Milligan Co. supra.) The stipulation found in this record amounts to no more than an agreement as to what the testimony would have been if, without the stipulation, it had been introduced before the court in the usual way, by the sworn testimony of witnesses or in the form of documentary evidence, and is not a stipulation as to the ultimate facts. There were presented to the court for determination, two questions of fact, or mixed questions of law and fact: First, was Irwin engaged in the occupation of a “coal miner” at the time he lost his life; second, did the appellee tender the appellants the amount due upon the policy prior to the day the suit was commenced. It cannot be said that the evidence found in the stipulation necessarily establishes both or either of these propositions in favor of appellee. That is a question, however, for the determination of the Appellate Court from the evidentiary facts found in the stipulation, and it is impossible for this court to determine whether or not the trial court misapplied the law to the facts until the ultimate facts have been determined, and we have no power to determine them, but must .look to the judgment of the Appellate Court for the determination thereof. (Purcell Co. v. Sage, supra.) If the Appellate Court reversed the trial court by reason of errors of law it should have remanded the cause for a new trial, and if the reversal was because it found the facts different from what the trial court found them it should have incorporated in its judgment the ultimate facts as found by it.
The judgment of the Appellate Court will be reversed and the cause remanded to that court, with directions to enter such judgment reversing and remanding, reversing without remanding, or affirming the judgment of the circuit court, as in its judgment may be proper, and if it reverse the judgmeht without remanding, it recite in the judg'ment the ultimate facts as found by it. Leave is given to withdraw the record of the circuit court filed in this court, for the purpose of re-filing it in the Appellate Court.
Reversed and remanded.
