H.&A. Israelstam v. United States Cas. Co.

• Court: Illinois Supreme Court
• Writing for the Court: FARMER
• Citation: H.&A. Israelstam v. United States Cas. Co., 272 Ill. 161, 111 N.E. 602 (Ill. 1916)
• Decision Date: 16 February 1916
• Docket Number: No. 10487.,10487.
• Parties: H. & A. ISRAELSTAM v. UNITED STATES CASUALTY CO.

272 Ill. 161

111 N.E. 602

H. & A. ISRAELSTAM

v.UNITED STATES CASUALTY CO.

No. 10487.

Supreme Court of Illinois.

Feb. 16, 1916.

Appeal from Branch D Appellate Court, First District, on Appeal from Municipal Court of Chicago; Edmund K. Jarecki, Judge.

Action by H. & A. Israelstam against the United States Casualty Company. Judgment for plaintiffs, and defendant appealed to the Appellate Court, which dismissed the appeal, and from such order, the defendant appeals. Reversed and remanded.

Moses, Rosenthal & Kennedy, of Chicago (Walter Bachrach, of Chicago, of counsel), for appellant.

John L. Fogle and Rose, Symmes & Kirkland, all of Chicago, for appellees.

FARMER, C. J.

A judgment of the municipal court of Chicago was entered July 10, 1914, in favor of appellees, H. & A. Israelstam, against appellant, the United States Casualty Company,for $839.16, and costs, in an action by the appellees against appellant on a policy of burglary insurance. An appeal from such judgment was taken to the Appellate Court for the First District, where, on motion, the appeal was dismissed. A certificate of importance was granted, and this appeal is perfected, bringing to this court for review the action of the Appellate Court in dismissing the appeal from the municipal court.

The action in the municipal court was a fourth-class case in contract, and the only question for review is: Does an appeal lie to the Appellate Court to review a judgment entered by the municipal court of Chicago in a fourth-class case? Appellant contends the right to such appeal exists apart from the provisions of the Municipal Court Act, and that section 23 of such act, in so far as it seeks to deny such right of appeal, violates section 29 of article 6 of the Constitution, commonly referred to as the uniformity clause.

Section 23 of the Municipal Court Act provides that cases of the fourth class shall be reviewed by writ of error only. It is conceded the right of appeal is purely statutory, and only exists where conferred by legislative enactment; also that there is no statute which by express terms purports to give the right of appeal to Appellate Courts from judgments of the municipal court in fourthclass cases; but appellant contends the provisions of the Appellate Court Act and the Practice Act giving the right of appeal in a certain class of cases from ‘city courts' to the Appellate Courts includes the right of appeal in the same class of cases from the municipal court to the Appellate Courts. This position is based upon appellant's contention that the municipal court is a city court, within the meaning of the Appellate Court and Practice Acts now in force.

Prior to the establishment of Appellate Courts, in 1877 (Laws 1877, p. 69), the Supreme Court had jurisdiction of appeals from judgments, orders, and decrees of inferior courts, including city courts. Under authority of section 11 of article 6 of the Constitution the Legislature in 1877 passed the act creating Appellate Courts. The jurisdiction of those courts is appellate only. Section 8 of the Appellate Court Act is as follows:

‘The said Appellate Courts created by this act shall exercise appellate jurisdiction only, and have jurisdiction of all matters of appeal, or writs of error from the final judgments, orders or decrees of any of the circuit courts, or the superior court of Cook county, or county courts, or from the city courts in any suit or proceeding at law, or in chancery other than criminal cases, not misdemeanors, and cases involving a franchise or freehold or the validity of a statute. Appeals and writs of error shall lie from the final orders, judgments or decrees of the circuits and city courts, and from the superior court of Cook county directly to the Supreme Court, in all criminal cases and in cases involving a franchise or freehold or the validity of a statute.’

It will be seen it gives the Appellate Courts jurisdiction of appeals from and writs of error to city courts. At the same session of the Legislature section 67 of the Practice Act of 1872 (Laws 1871-72, p. 348), was amended (Laws 1877, p. 149) so as to provide for appeals from and writs of error to city courts except as provided in section 88 of the Practice Act. That section specified the class of cases in which appeals from and writs of error to the inferior courts should so direct to the Supreme Court; one of the classes being all criminal cases. It will be observed that by section 8 of the Appellate Court Act criminal cases are included in the class of cases to be taken from the inferior court direct to the Supreme Court upon appeal or writ of error. Ingraham v. People, 94 Ill. 428, was an appeal direct to the Supreme Court in criminal case, and it was there held that previous to the passage of the Appellate Court Act the only mode of review in criminal cases was by writ of error, and that neither section 8 of the Appellate Court Act nor section 88 of the Practice Act was intended to provide for or give a new right of appeal in cases in which an appeal had not before been given. Appeals had before been given in cases at law from judgments of inferior courts, including city courts, and the Appellate Court Act was merely intended to provide what appeals should go to the Appellate Courts and what to the Supreme Court. It was correctly held that, appeals never having been provided for in criminal cases, it was not the purpose of the act to create the right of appeal in such cases. At the time the Appellate Court Act was passed and the Practice Act amended, in 1877, the municipal court in Chicago had not been established; hence that court is not expressly mentioned in those acts.

Appellees insist that the municipal court of the city of Chicago is not of the same class or grade as city courts, and is so essentially different from them that it cannot be considered within the...