| Ill. | May 11, 1891
delivered the opinion of the Court;
This is an action brought by plaintiff in error, as administratrix of the estate of her deceased husband, James A. Neer, in the Circuit Court of Champaign County, to recover damages against the defendant in error for the death of her said husband. The deceased was a locomotive engineer upon one of the trains of the defendant in error, and was killed on November 22, 1886, in a collision between the train on which he was so acting as engineer, and another train at Savoy, a station a short distance south of Champaign. The verdict and judgment in the Circuit Court were in favor of the plaintiff.
The Appellate Court has reversed the judgment of the Circuit Court without remanding the cause. The 87th section of the Practice Act provides that “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 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,” etc.
Upon looking into the record of the Appellate Court, we find a recital, that, on June 27, 1889, “there was filed in the office of the Clerk of said Court a finding of facts by said Court, which is in the words and figures following, to wit: we find that,” etc. Then afterwards there is a recital, that, on June 27, 1889, “an order was made by said Court in words and figures following, towitThen follows the final order or judgment of the court, which does not recite any facts as found by the Court. It is the plain language of the statute, that the facts as found must be recited in the judgment. We have held that the facts thus found by the Appellate Court must be set out, by way of recital, in the final order or judgment of the court in the same manner in which they are usually set forth and recited in decrees in chancery, and that, in this manner, they become a part and parcel of the judgment or decree itself, “and so long as the record has an existence there can be no controversy as to the facts upon which the decree or judgment rests.” (Tibballs v. Libby, 97 Ill. 552" date_filed="1881-02-03" court="Ill." case_name="Tibballs v. Libby">97 Ill. 552; Fitzsimmons v. Cassell, 98 id. 332; Tenney v. Foote, 95 id. 99.) In the present case, the paper filed in the Appellate Court, and called a “finding of facts,” is not even signed by any of the judges of that Court, nor are any of its recitals set out in the final order or judgment.
The facts as found by that Court “should include the facts concerning every material issue submitted to the trial court.” (Commercial Ins. Co. v. Scammon, 123 Ill. 601" date_filed="1888-01-19" court="Ill." case_name="Commercial Insurance v. Scammon">123 Ill. 601.) Nor should the judgment of the trial court be reversed without remanding the cause, unless the Appellate Court would be justified in finding for the defendant if it were sitting in the place of the trial judge, that is to say, unless it appear that there is no conflict in the evidence upon the material issues, and unless it appear that there is no evidence tending to sustain the issues on the part of the plaintiff. (Com. Ass. Co. v. Scammon, 126 Ill. 355" date_filed="1888-11-15" court="Ill." case_name="Commercial Union Assurance Co. v. Scammon">126 Ill. 355.) Otherwise, the plaintiff would be deprived of the constitutional right tó a jury trial by the substitution of the judgment of the Appellate Court for the judgment of the jury. Where there is in the evidence a real controversy of fact, the question of fact must be left to the jury. When the evidence given at the trial, with all the inferences which the jury could justifiably draw from it, was so insufficient to support their verdict that the trial court would have been warranted in directing them to find for the defendant, but failed to do so, then and then only can the Appellate Court reverse without remanding, because, in such' case, it merely renders the judgment that should have been rendered in the trial court. (Com. Ins. Co. v. Scammon, supra.)
Since no facts found by the Appellate Court are recited in its final judgment of reversal, as shown by the present record, such judgment is erroneous, and should be reversed, and the cause remanded to the Appellate Court to render a judgment ■de novo; and, if that Court should still be of opinion that, .on ■the record before it, the judgment of the Circuit Court should be reversed, judgment of reversal should be entered, and the facts found, upon which the judgment of the Appellate Court is predicated, as repeets all the questions contested in the Circuit Court, should be recited and set out in such judgment.
The judgment is reversed, and the cause remanded to the Appellate Court for the Third District for further proceedings in conformity with this opinion, and leave is given to withdraw the record of the Circuit Court filed in this Court for the purpose of refiling it in the Appellate Court.
Judgment reversed.