Barry v. Knight

• Decision Date: 29 June 1938
• Docket Number: Gen. No. 39939.
• Citation: 15 N.E.2d 999,296 Ill.App. 277
• Parties: BARRY v. KNIGHT ET AL.
• Court: United States Appellate Court of Illinois

296 Ill.App. 277

15 N.E.2d 999

BARRY

v.KNIGHT ET AL.

Gen. No. 39939.

Appellate Court of Illinois, First District, Third Division.

June 29, 1938.

Appeal from Municipal Court of Chicago; Frank M. Padden, Judge.

Action by Gerald G. Barry against Sarah E. Knight and others for foreclosure of a trust deed. From a judgment for defendants, plaintiff appeals.

Affirmed. William K. Tell and Hiram T. Gilbert, both of Chicago, for appellant.

Henry N. Gottlieb and Walter F. Dodd, both of Chicago, for appellees.

HEBEL, Presiding Justice.

This is an appeal by the plaintiff from an order entered by the court dismissing the plaintiff's action on defendants' motion on the ground that the Municipal Court of Chicago had no jurisdiction.

The action instituted by the plaintiff was against the defendants for the foreclosure of a mortgage in the form of a trust deed on real estate executed by the defendant Sarah E. Knight to secure the payment of certain promissory notes now owned by the plaintiff upon which there is due him upwards of $5,000.

The sole question in this case is whether the General Assembly has vested jurisdiction in the Municipal Court of Chicago to hear and determine actions to foreclose mortgages. The plaintiff has called our attention to the following provisions in an act relating to the Municipal Court of the City of Chicago, under Ch. 37, Ill. Rev.Stats.1937, as fixing the jurisdiction of the court:

First. Section 1 of the Municipal Court Act, Ill.Rev.Stat.1937, c. 37, § 356, provides that “There shall be established in and for the City of Chicago a Municipal Court which shall be a court of record * * * and the jurisdiction of which shall be exercised in the manner hereinafter prescribed.”

Second. Section 2 of the Act as amended, Ill.Rev.Stat.1937, c. 37, § 357, provides that the court shall have jurisdiction in the following cases: “All actions on contracts, express or implied, whether implied in law or implied in fact, when the amount claimed by the plaintiff, exclusive of costs, exceeds one thousand dollars ($1,000).”

Third. Section 20 of the Act, Ill.Rev.Stat. c. 37, § 375, provides that “The judges of said municipal court shall have power to adopt, in addition to or in lieu of the provisions herein contained prescribing the practice in said municipal court or of any portion or portions of said provisions such rules regulating the practice in said court as they may deem necessary or expedient for the proper administration of justice in said court.”

And the plaintiff suggests that this court is to determine from these three provisions, and from them only, whether the Municipal Court has jurisdiction of an action to enforce the payment of a promissory note secured by a mortgage upon real estate.

It is further suggested by the plaintiff that prior to the adoption of the Amendatory Act of 1931, there were many provisionscontained in the original act, Smith-Hurd Stats. c. 37, § 356 et seq., which prescribed methods of practice which the judges were bound to follow, but after the adoption of the Amendatory Act in 1931, by the operation of Rule 311, which became effective on November 1, 1935, those provisions became ineffective except to the extent that they were not in conflict with the Rules adopted by the judges. Rule 311 provides as follows: “The foregoing rules shall be treated as in lieu of all express provisions of the Act entitled ‘An Act in relation to a Municipal Court in the City of Chicago’, approved May 18, 1905, as amended, prescribing the practice in said court as well as all other statutory rules of practice in conflict with said rules and shall then be in force from and after November, 1935. * * *”

Rule 1 of the Municipal Court provides as follows: “Contract Actions, which shall include all actions on contracts, express or implied, whether implied in law or implied in fact, on which actions ex contractu for the recovery of money, only, could be maintained at common law, as well as all actions in which any equitable remedy or equitable relief is sought for the enforcement of demands for money or personal property, excepting actions hereinafter otherwise classified.” And incorporates provisions regarding actions not material to the question involved in this case.

It has been suggested by the plaintiff that the note to Rule 1 must be treated as a part of the rule. It is in part as follows: “Included in contract actions are not only common law actions ex contractu, but also action for the recovery of money or personal property in which equitable remedies are sought such as actions to foreclose mortgages; to enforce vendors' or mechanics' liens; to correct mistakes in written instruments for the payment of money and enforce them as corrected; to enforce specific performance of contracts for the delivery of personal property, or for the purchase of personal property; to compel accountings; creditors' bills and all other action to recover money or personal property of which courts of equity have heretofore exercised concurrent jurisdiction with courts of law. The Municipal Court is limited in its jurisdiction to actions for the recovery of money or personal property only, where no independent relief is sought, but for the purpose of recovering money or personal property and securing its payment or delivery to the plaintiff it may adopt equitable modes of procedure and enforce equitable rights, and may in any such actions give the defendant the benefit of equitable defenses.”

It is well to have in mind what the Supreme Court has stated as to the purpose of the Municipal Court Act. In Lott v. Davis, 264 Ill. 272, 106 N.E. 179, upon this subject, the court said (page 180): “The municipal court of Chicago was created after the adoption of section 34 of article 4 of the Constitution [Smith-Hurd Stats.Const. art. 4, § 34], which, in contemplation of the creation of the court, provided that if the General Assembly should create such a court it might abolish the offices of justices of the peace, police magistrates, and constables within the city and limit the jurisdiction of justices of the peace of the county outside of the city to that territory. The primary and leading purpose manifest from the constitutional provision was to create a court with the jurisdiction and functions of justices of the peace and police magistrates and to abolish their offices for the territory within the city. While that was the well-known purpose of section 34 and the occasion for creating the court, the General Assembly saw fit to add to the jurisdiction of justices of the peace and police magistrates jurisdiction in certain classes of cases of more importance in which jurisdiction had been exercised by county and circuit courts. This was done under the provision that the jurisdiction and practice of the court should be such as the General Assembly might prescribe, and in the exercise of its discretion the General Assembly did not give to the municipal court all the jurisdiction of any other court except the courts of justices of the peace and police magistrates. If the municipal court is considered in its entirety, it is impossible to assign to it a place identical with the grade or class of any other court which now exists or ever has existed. The court goes under the generic name of a city court, but it belongs to a specific class different from the city courts created under the general city court act, and is created, not as a part of the judicial department of the state at large, but as a local court of the city for the purpose of administering the law within the city. People v. Hibernian Banking Ass'n, 245 Ill. 522, 92 N.E. 305. It has none of the more important classes of jurisdiction of circuit courts, including the entire chancery jurisdiction, actions for torts where the damages exceed $1,000, as well as ejectment, mandamus, quo warranto and habeas corpus. The municipal court is composite in its nature and jurisdiction, and in the exercise of jurisdiction of the same nature conferred by general laws upon justices of the peace and police magistrates outside of the city it cannot be regarded as of the same class or grade as circuit courts.”

The Supreme Court in the above case indicates the Municipal Court is composite in its nature and jurisdiction and is not to be regarded in the same class as circuit courts having general jurisdiction, and, using the language of the court, the General Assembly “did not give to the municipal court all the jurisdiction of any other court.” The jurisdiction of the Municipal Court is dependent upon the action of the General Assembly, and therefore can exercise only such jurisdiction as was granted by the legislature.

The plaintiff, in discussing the question of the jurisdiction of the court, points to the fact that the original Municipal Court Act as adopted in 1905 and amended in 1907, while conferring upon the judges power to adopt rules of practice, contained the proviso that no rule or rules so adopted should be inconsistent with those expressly provided for by the Act. It also gave the Supreme Court a superintending power over the rules adopted by the judges. This so restricted the power of the judges that for twenty-six years after the court was organized no attempt was made by the judges to prescribe equitable methods of procedure. Plaintiff further contends that by the Amendatory Act of 1931 the description in Section 2 of “all actions on contracts, express or implied”, was changed to “all actions on contracts, express or implied, whether implied in law or implied in fact”, and the proviso limiting the rule making power of the judges and the provision conferring power upon the Supreme Court were stricken out, and it is then suggested by the plaintiff that the result of these changes is that actions on judgment and actions to recover taxes and penalties are now within the unlimited jurisdiction of the court and the rule making power of the judges is now unlimited....