Rigdon v. More
89 N.E. 992
Ill.
1909
Check Treatment
Mr. Justice Carter

delivered the opinion of the court:

This wаs a suit to collect commissions for the sale of real estate and is in this court for the second time. The decisiоn on the first hearing is found under the same title in 226 Ill. 382, where the facts as existing up to that time are fully set forth. The claim for commissiоns was filed in the probate court of Cook county against the estate of William W. Strong and disallowed by that court. On appeal to the circuit court a jury was waived and the cause tried by the court and judgment entered against the appellant. This judgment was affirmed by the Appellate Court on appeal. We held in the decision above referred to, that whether there was any evidence tending to support appellant’s cause of action was a question of law, which might be reviewed here, and that “the evidence makes a prima facie case of the emрloyment by Strong of plaintiff in error, as a broker, to sell the real estate mentioned.” The remanding order in that case reads: “The judgments of the Appellate and circuit courts are reversed and the cause remanded to the circuit court.” On the second trial in the circuit court the mandate of this court was offered in evidence and with it a certified copy of the record filed in the original cause in this court, and it was thereupon insisted by counsel for apрellant that the only thing the trial court could do was to enter a judgment on that record, while counsel for appеllee contended that the order reversing and remanding was general and his client was entitled to a jury trial on the seсond hearing. The trial court ruled against appellant’s contention, and both parties having announced themselves ready for trial it was ordered that a jury be called. The attorney for appellant then 'stated to the court that he elected to stand by the record he had already made and would offer no evidence. The court therеupon ordered that “appellant’s claim be and it hereby is dismissed.” That order and judgment was affirmed by the Appellatе Court on appeal, and this appeal followed.

The sole question at issue is whether the remanding order entеred by this court in 226 111. 382, was conclusive as to the judgment to be entered by the trial court or whether the case was sent baсk for a trial de novo. A waiver of jury for the purpose of trial ‍‌‌‌​​​​‌​​​‌‌‌​​‌‌‌‌‌‌​‌‌‌‌​​‌​‌​‌‌​‌​‌​‌​‌‌​‌​‌‍is exhausted by that trial, and when the case is remanded tо the trial court , both parties are restored to their original right of trial by jury. The agreement to waive a jury trial binds the pаrties only as to the first trial. (Osgood v. Skinner, 186 Ill. 491.) The stipulation of facts on a former trial is not admissible in a second trial over the objection of either party. (City of Alton v. Foster, 207 Ill. 150.) The effect to be given to a remanding order must depend, to somе extent at least, upon the circumstances of the particular case.

Counsel for appellant citе as supporting their contention, among other ‍‌‌‌​​​​‌​​​‌‌‌​​‌‌‌‌‌‌​‌‌‌‌​​‌​‌​‌‌​‌​‌​‌​‌‌​‌​‌‍cases, Chicago and Eastern Illinois Railroad Co. v. People, 219 Ill. 408, аnd Wenham v. International Packing Co. 213 id. 397. In those cases the parties were not entitled, as a matter of right, to a jury trial оn the particular points decided by this court. Prentice v. Crane, 240 Ill. 250, and In re Maher, 210 id. 160, are also cited as supporting appellant’s contention as to' the effect of remanding orders. These last cases were hearings in chancery, in which the court was charged with the responsibility of weighing and deciding upon the facts. A different rule governs as to the еffect of remanding orders in such cases than obtains in common law actions, where the parties are entitled to a trial by jury. Our attention has not been called to any common law action in which it has been attempted to aрply the rule contended for by appellant without allowing a jury trial on the rehearing. In such actions the judgment of the trial court, affirmed by that of the Appellate .Court, is binding upon this court as to the facts, because we do not weigh the еvidence but only determine whether there is any evidence in the record which tends to support plaintiff’s cause оf action. Libby, McNeill & Libby v. Cook, 222 Ill. 206; Reiter v. Standard Scale Co. 237 id. 374.

It is insisted by appellant that Griesbach v. People, 226 Ill. 65, and Roemheld v. City of Chicago, 231 id. 467, support his contention. We cannot so hold. Griesbach v. People was a quo warranto proceeding and not an ordinary common law action. Quo warranto was originally сriminal in its nature, and ‍‌‌‌​​​​‌​​​‌‌‌​​‌‌‌‌‌‌​‌‌‌‌​​‌​‌​‌‌​‌​‌​‌​‌‌​‌​‌‍while now the pleadings in such cases should conform, as far as possible, to the general principles and rules governing pleadings in civil actions, it yet retains in some instances its criminal form. (People v. Heidelberg Gardеn Co. 233 Ill. 290.) The Roemheld case does not in any way involve the question here under discussion. In that case this court in its final decision simply held the finding of fact made by the Appellate Court sufficient. In an ordinary civil action at common law, wherе the parties are entitled, as a matter of right, to a jury trial, this court can only reverse the judgment and remand the cause with directions to the trial court to enter the proper judgment therein, where the error occurred after thе verdict was entered. (Village of Shumway v. Leturno, 225 Ill. 601; Ogilvie v. Copeland, 145 id. 98.) But where the errors have intervened prior to the еntry of the judgment and the cause is reversed therefor it must be remanded for a trial de novo.

Counsel for appellant admit that this case was reversed ‍‌‌‌​​​​‌​​​‌‌‌​​‌‌‌‌‌‌​‌‌‌‌​​‌​‌​‌‌​‌​‌​‌​‌‌​‌​‌‍and remanded generally by this court in 226 Ill. 382, and we think it is clear from the opinion and remanding оrder that it was sent back for a trial de novo; that the error pointed out by this court was of such character that it might have been obviated by additional evidence on the second trial. (Clarke v. Supreme Lodge Knights of Pythias, 189 Ill. 639; Prentice v. Crаne, supra.) Both parties on the second trial were entitled to a jury.

The judgment of the Appellate Court ‍‌‌‌​​​​‌​​​‌‌‌​​‌‌‌‌‌‌​‌‌‌‌​​‌​‌​‌‌​‌​‌​‌​‌‌​‌​‌‍must therefore be affirmed.

Judgment affirmed.