212 Ill. 301 | Ill. | 1904
delivered the opinion of the court:
The contention made upon this writ of error is the same as the contention made by plaintiff in error when this case was here before, that is, that the finding of facts of the Appellate Court are not sufficient, in law, to enable this court to" pass upon the questions involved upon this record as raised by the assignment of errors. Section 87 of the Practice act (Hurd’s Stat. 1903, p. 1412,) provides, if the Appellate Court shall finally determine a cause different from the trial court as the result of its finding of facts concerning the matters in controversy, in whole or in part, different from that court, it shall be its duty to recite in its final order, judgment or decree the facts as found, and the judgment of said court shall be final and conclusive as to all matters of fact in controversy in such cause. This statute has been repeatedly construed by this court, and it has uniformly been held that the Appellate Court, in its finding of facts, should not find the evidentiary facts, and that it should not find conclusions of law, but should find the ultimate controlling facts. In Davis v. Chicago Edison Co. 195 Ill. 31, on page 35, it was said: “The rule is that the Appellate Court shall find the ultimate and controlling facts. That court is not required to recite the evidentiary facts which it took into consideration in reaching its ultimate conclusion of facts.—Hancock v. Singer Manf. Co. 174 Ill. 503; Huyett & Smith Manf. Co. v. Chicago Edison Co. 167 id. 233.”
In Williams v. Forbes, 114 Ill. 167, the Appellate Court made the following finding of facts: “That the note sued on, and which is the foundation of the claim of appellee in this case, was given by Delilah Deeds, deceased, without any consideration whatever; that it was a mere gift, intended by Delilah Deeds, deceased, to be given to appellee in the nature of a testamentary bequest, and that there is no other cause of action or supposed cause of action, save the note, claimed by appellee in this suit.” On page 170 Mr. Justice ScholriSLD, speaking for the court, said: “The argument addressed to us by counsel for appellant is one that should have been addressed to the Appellate Court upon petition for rehearing. It is purely a discussion of facts to establish that the Appellate Court erred in finding the facts differently from what they were found to be by the circuit court. No ruling on any question of law was excepted to which is now pressed as ground of error. Indeed, the only question of law which, on the finding of facts by the Appellate Court, it is possible now to raise, is whether, on those facts, the law authorizes or precludes a recovery. Section 87 of the Practice act, as amended by the act of June 2, 1877, in force July 1, 1877, (Pub- Laws of 1877, p. 153,) provides: ‘If any final determination of any cause, as specified in the preceding sections, shall be made by the Appellate Court, as the result, wholly or in part, of the finding of the facts con-earning 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 all matters of fact in controversy in such cause.’ This language needs no interpretation, and it is impossible, by construction, to import a meaning into it not apparent upon its face. We can add no words to make its meaning- more intelligible. The decision of the Appellate Court, in such cases, being conclusive as to all matters of fact, we cannot review them. Whether the finding of that court is right or wrong, that is the end of it,—and so we have expressly held in Harzfeld v. Converse, 105 Ill. 534. See, also, to like effect, Hayward v. Merrill, 94 Ill. 350; Thomas v. Fame Ins. Co. 108 id. 91; Tenney v. Foote, 95 id. 99; Missouri Furnace Co. v. Abend, 107 id. 44.”
In Caywood v. Farrell, 175 Ill. 480, the finding of facts made by the Appellate Court was: “The court finds that it does not appear from the evidence that the said Felix G. Farrell was indebted in any sum to said James Caywood when the writs of garnishment were issued, nor at any time afterward before the rendition of the judgment in garnishment proceedings.” The court, on page 482, speaking by Mr. Justice Phillips, said: “It is clear that the Appellate Court, on finding the facts differently from the lower court, is only required to recite in its order or judgment of reversal the ultimate facts in issue as made by the pleadings, or the conclusion of such ultimate fact or facts from the evidentiary facts. Such recital of ultimate facts must include or cover all the material issues made by the pleadings vital to determine a right of recovery. In an action for negligence, for fraud or for money claimed to be due, these are, respectively, the ultimate facts in such cases, and a finding of such facts by the Appellate Court is sufficient under the statute, conclusive on this court and not subject to revision. (Chicago and Alton Railroad Co. v. Pennell, 110 Ill. 435; Williams v. Forbes, 114 id. 167.) The finding of the Appellate Court, as set out in this record, was of an ultimate fact, and sufficient, under the statute, if it covered or included all the ultimate facts ‘concerning the matter in controversy.’ ”
In Brown v. City of Aurora, 109 Ill. 165, the findings of facts were: “That the sidewalk upon which the injury was received was, at the time the said injury was received, reasonably safe, as a sidewalk, for the appellee (plaintiff in error) to pass over it if he exercised ordinary care; that before and at the time appellee passed over said sidewalk on the occasion of receiving said injury he was fully aware of the condition as to its slipperiness and all other defects in and of said walk, and at the said time of so passing over the said sidewalk, he, the appellee, did not exercise that ordinary care that a reasonably prudent man would have done under the same circumstances; and we further find that the appellant did exercise ordinary care in constructing and maintaining said walk, and was in the due exercise of such care in maintaining said walk at the time of said injury.” The court, speaking by Mr. Justice MuricEy, on page 167 said: “Now, what was the main and ultimate fact which the plaintiff was bound to prove in order to recover ? Manifestly, the city’s negligence as charged in the declaration. * * * If the Appellate Court had no right to find there was or was not negligence on the part of the city, what should it have found ? Should it merely have gone on and recited that this witness swore to this fact and that witness swore to that fact, and so proceeded until everything testified to had been gone over? To have done so would réally have been finding nothing, for all that would have been apparent upon a mere reading of the bill of exceptions. The Appellate Court, where it differs from the conclusions reached by the trial court, is required to recite in its final order the facts as found by that court. The expression ‘facts as found/ necessarily implies the drawing of a conclusion or inference from the evidentiary facts embodied in the bill of exceptions, and this conclusion or inference to be drawn is nothing more than the factum probandum, or ultimate fact or facts, upon which the case depends and which it was the duty of the Appellate Court to find.”
The judgment of the Appellate Court, when the case was here before, was reversed and the cause was remanded to that court -with directions to find the ultimate facts upon which the legal conclusion arose that the checks were without consideration. For the guidance of the Appellate Court it was then said (202 Ill. 382) : “The defense sought to be made was, that the checks were not founded on any consideration, and that all amounts collected on bonds or securities belonging to the plaintiff in error had been paid by the deceased to her. These were the controverted questions of fact in the case.” Upon the re-instatement of the case the Appellate Court made the finding of facts contained in the statement preceding this opinion. It found by paragraph 6 that the checks which were the basis of the larger part of the claim were executed by Edward Martin with the intention and purpose of making a gift of the proceeds of said checks to Serena M. Martin; by paragraphs 11 and 12, that the checks dated April 13, 1893, were placed by Edward Martin in the claimant’s safety deposit box with the intent that she should have the benefit of them as a gift, and that she did not know they had been executed until after the death of Edward Martin; by paragraph 13, that the checks dated October 14, 1893, were delivered to the claimant before the death of Edward Martin and were in her possession and control when he died; and by paragraph 8, that none of said checks were presented to the banks upon which they were drawn, prior to the death of Edward Martin. The ultimate controlling facts, therefore, found by the Appellate Court upon which it based its conclusion as to the first controverted question, namely, that the checks were founded on no consideration, were, that they were gifts and had not been presented to the banks prior to the death of Edward Martin.
It is urged, however, that the court also found, by paragraph 6, that Edward Martin executed the checks with the intention and purpose of making a gift of the proceeds of said checks to Serena M. Martin, in pursuance of the same purpose as set forth in above findings, and “that the above findings” show that said checks were not executed as gifts, but that they were supported by a valid consideration, that is, the services of Serena M. Martin. An examination of “the above findings” will disclose, at most, an attempt to state some of the reasons which governed the Appellate Court in reaching the conclusion that the checks were executed as gifts. In other words, the court sets out in the finding of facts a part of the evidentiary facts upon which its conclusions as to what were the ultimate controlling facts were based. This court cannot consider the evidentiary facts, but will consider and is bound only by the ultimate facts found by the Appellate Court, (Brown v. City of Aurora, supra,) and which in this case aré, that the checks were executed and delivered as a gift, from which the conclusion necessarily follows that they were without consideration. (Williams v. Forbes, supra.) The recital in the finding of facts of a part of the evidentiary facts upon which the finding of the Appellate Court as to the ultimate controlling facts are based will not impeach their finding as to the ultimate controlling facts, but the evidentiary facts contained in their finding will be rejected as surplusage. The Appellate Court also found, by paragraph 14 of its finding, that the claim of the plaintiff in error, so far as.the same is based on interest collected for her account and cash received on principal of notes and the securities for her use, was fully paid, discharged and settled by Edward Martin in his lifetime, and that there is nothing whatever due on these accounts from the estate of Edward Martin to the claimant. These findings we think conclusive upon this court. In Caywood v. Farrell, supra, the finding was that Farrell was not indebted in any sum to said James Caywood, which finding was held sufficient and conclusive upon this court.
We are of the opinion the finding of facts of the Appellate Court contains all the ultimate controlling facts in the case, and is binding upon this court and bars the plaintiff in error’s action upon said checks and account. The judgment of the Appellate Court will therefore be affirmed.
Judgment affirmed.
