Borg v. Chicago, R.I.&P. Ry. Co.

• Decision Date: 28 March 1896
• Citation: 162 Ill. 348,44 N.E. 722
• Parties: BORG v. CHICAGO, R. I. & P. RY. CO.
• Court: Illinois Supreme Court

162 Ill. 348

44 N.E. 722

BORG

v.CHICAGO, R. I. & P. RY. CO.¹

Supreme Court of Illinois.

March 28, 1896.

Error to appellate court, First district.

Action by Carl Borg against the Chicago, Rock Island & Pacific Railway Company. A judgment for plaintiff was reversed by the appellate court (57 Ill. App. 521), and plaintiff brings error. Affirmed.

Magruder, J., dissenting.

Masterson & Haft, for plaintiff in error.

Robert Mather, for defendant in error.

CARTWRIGHT, J.

Plaintiff in error brought suit against defendant in error to recover for injuries sustained, as it was alleged, through the negligence of defendant in error, and recovered judgment for $20,000 and costs. The appellate court reversed that judgment, as a result of finding the facts concerning the matter in controversy different from the findings of the circuit court, from which the cause was brought. The facts so found were recited in the final order of the appellate court, as follows: ‘And the court finds that the injury to the said appellee was the result of his own carelessness, and not of any negligence of appellant.’ This finding of fact being conclusive against the right of recovery, the cause was not remanded. The judgment of the appellate court was a final determination of the cause in which it was entered. A judgment reversing and remanding for another trial is not final, but, in case of a reversal without remanding, the judgment of the trial court is set aside and annulled. It ceases to be a judgment, either for damages or costs. The suit is ended, and there is a judgment against the appellee or defendant in error for the costs of the appeal or writ of error. The judgment of reversal was entered in pursuance of section 87 of the practice act,² providing for a finding of facts upon the final determination of a cause, as a result of finding such facts different from the finding of the court from which the cause was brought; and, if the appellate court had power to determine the controverted questions of fact in the case, this court, by section 89 of the practice act, is prohibited from a re-examination of such questions.

It is contended by plaintiff in error that in this case the appellate court had no right to exercise the power conferred by section 87, because the determination of the questions of fact in issue rested upon and required the weighing of testimony and a comparison of the credibility of witnesses. At the trial the plaintiff testified to a state of facts which would justify a verdict in his favor, and on the part of the defendant there were a large number of witnesses testifying to a contrary state of facts; and the argument is that the appellate court could not pass upon such controverted questions of fact, but was limited to determining whether there was or was not evidence legally tending to establish a cause of action. In other words, it is claimed that the appellate court can reverse without remanding only under the same circumstances where a trial court might direct a verdict, and that it was never contemplated by the section of the practice act in question to enlarge the powers of the appellate court beyond those possessed by the trial court. That section has been recognized in a great many cases, and was declared valid and constitutional in Siddall v. Jansen, 143 Ill. 537, 32 N. E. 384, and Neer v. Railroad Co., 151 Ill. 141, 37 N. E. 700. Its scope is the only question presented for consideration in this case. Under the interpretation contended for, the constitutionality of the section is conceded; but it is insisted that, if construed to authorize the judgment in this case, the act would be unconstitutional, and that the appellate court, by refusingto remand this cause for a new trial, has deprived plaintiff in error of his constitutional right of a trial by jury. The successive constitutions of this state have each guarantied the right of trial by jury as enjoyed at and before the adoption of such constitution, and have preserved the right to that method of trial as it previously existed. Ross v. Irving, 14 Ill. 171; Insurance Co. v. Scammon, 123 Ill. 601, 14 N. E. 666. Under the common law, where causes were tried by a jury they were reviewed on error or appeal solely for errors of law; and it was not the practice to remand a case for a new trial, when reversed. When the power to remand the cause, and award a venire de novo came to be recognized as existing in the court of appeal or error, it was exercised according to the character of the case, in the sound discretion of the court, and a litigant could not demand its exercise as a matter of right. When this court was first instituted it was confined to the English practice of reviewing cases only upon errors of law, and in its early history the question of entering final judgments or remanding causes was made the subject of statutory regulation. The statute provided that in all cases of appeal and writ of error this court might give final judgment and issue execution, or remand the cause to the inferior court in order that an execution might be there issued, or that other proceedings might be had thereon. Act Jan. 29, 1827. The same provision has been continued in our statute ever since, and when the appellate courts were established it was extended so as to include them. Practice Act, § 80. The right of trial by jury, as it existed at common law and under the statute during the period when this court reviewed cases only upon errors of law, was subject to the power to reverse the judgment entered on the verdict of the jury, for errors of law, without remanding the cause. This method of reviewing cases continued until the act of July 21, 1837, by which this court was authorized to review the evidence and consider questions of fact upon appeal or writ of error. The statute concerning entering final judgment or remanding the cause remaining the same as before, it then became the practice of this court to review questions of fact as well as law, and to reverse without remanding, and this practice was continued up to the adoption of the present constitution. This power to reverse without remanding was exercised in a great number of cases from 1837 up to the adoption of the present constitution, as well on a consideration of the facts as in cases determined purely on questions of law. The following are a few of the cases so reversed without remanding: Sherman v. Smith, 20 Ill. 351;Moss v. Johnson, 22 Ill. 633;Orne v. Cook, 31 Ill. 238;Phillips v. City of Springfield, 39 Ill. 83;Wells v. People, 44 Ill. 40;Railway Co. v. Miller, 45 Ill. 42; Railroad Co. v. Shanefelt, 47 Ill. 497; Railroad Co. v. McLaughlin, Id. 265; Railroad Co. v. Dorsey, Id. 288; Railway Co. v. Merrill, 48 Ill. 425; Leather Co. v. Reissig, Id. 75; Railroad Co. v. Fears, 53 Ill. 115.

The right of trial by jury at the time of the adoption of the constitution was understood to exist, subject to the power of this court, subsequently extended to the appellate court, to review the judgments of trial courts on the facts, and to reverse such judgments without remanding the cause for a new trial; and it was this right of trial by jury as so enjoyed which was preserved and protected by the constitution. The practice of reversing judgments without remanding the cause was continued in this court, and a great number of cases were so reversed up to the organization of the appellate courts, as will appear from an examination of the reports, and the power so exercised in this court was not questioned. When the appellate courts were organized, the power to determine questions of fact was conferred upon them, and the provision for reciting facts was annexed to the power. It was said in Insurance Co. v. Scammon, supra, that this finding was required...