City of Spring Valley v. Spring Valley Coal Co.

• Decision Date: 18 June 1898
• Parties: CITY OF SPRING VALLEY v. SPRING VALLEY COAL CO.
• Court: Illinois Supreme Court

173 Ill. 497

50 N.E. 1067

CITY OF SPRING VALLEY

v.SPRING VALLEY COAL CO.

Supreme Court of Illinois.

June 18, 1898.

Appeal from appellate court, Second district.

Action by the Spring Valley Coal Company against the city of Spring Valley. A judgment for defendant was reversed in the appellate court (71 Ill. App. 432), and judgment was entered for plaintiff, and defendant appealed. Reversed.

Magruder, J., dissenting.

J. L. Murphy, for appellant.

Alfred. R. Greenwood and Richard M. Skinner, for appellee.

CARTWRIGHT, J.

Appellee, the Spring Valley Coal Company, brought this action on the case under the act in force July 1, 1887, entitled ‘An act to indemnify the owners of property for damages occasioned by mobs and riots,’ to recover damages for property destroyed by a mob within the corporate limits of appellant, the city of Spring Valley, on the night of July 6, 1894. Defendant pleaded the general issue, and the cause was tried before a jury, and resulted in a verdict for the defendant. Plaintiff appealed to the appellate court, where the judgment of the circuit court was reversed. The appellate court thereupon rendered final judgment in the cause, and recited therein a finding of facts concerning the matters in controversy, as follows: ‘We find as a fact that appellant is a corporation duly organized under the laws of this state for the purpose of mining and selling coal and other minerals; that the city of Spring Valley, appellee, is a municipal corporation duly organized under the general law of this state; that on the night of July 6, 1894, a mob, composed of three or four hundred persons, riotously assembled in the city of Spring Valley, and made an assault upon the property owned by appellant then and there being within the corporate limits of said city, and not in transit, and destroyed personal property belonging to appellant and in its possession to the amount of $9,066.95, and did damage to the real estate of appellant in which said personal property was stored to the amount of $163.25. We further find that such destruction and damage to appellant's property by said riotous mob was not occasioned, or in any way aided, sanctioned, or permitted, by the carelessness, neglect, or wrongful act of appellant, its agents, officers, and servants, but we find as a fact that appellant, its agents, officers, and servants, used all reasonable diligence to prevent such destruction and damage. We further find as a fact that within thirty days after the damage to its property and the destruction thereof, as above found, appellant served upon the proper officers of appellee due notice of its claim for damages, as required by the statute under which this suit was brought, and that this action was commenced within twelve months after such destruction and injury occurred. We further find as a fact three-fourths of the value of the property of appellant so damaged and destroyed is the sum of $6,937.65, as to which there is no contradictory evidence. It is therefore ordered and adjudged that the judgment of the circuit court of Bureau county herein against appellant and in favor of appellee be, and it is hereby, reversed and set aside, and that said appellant, the Spring Valley Coal Company, do now have and recover of and from the said appellee, the city of Spring Valley, said sum of six thousandnine hundred thirty-seven dollars and sixty-five cents ($6,937.65) so as aforesaid by this court found to be its damages, together with its costs in this court and in the court below to be taxed, the same to be paid in due course, as in case of other judgments against municipal corporations.’

It is first claimed by counsel for appellant that the appellate court erred in not sustaining its motion in that court to dismiss the appeal. There is no abstract of the proceedings in the appellate court. The record shows that a motion to dismiss the appeal was made, but it contains no ground or reason for the motion. Counsel now says that the motion was based on the ground that the appellate court had no jurisdiction, because a constitutional question was involved, and that his claim in that court was that the statute under which this action was brought was invalid, and in conflict with the constitution. Appellant was successful in the trial court, and there was a verdict and judgment in its favor. The abstract of the record of the trial court shows the refusal of an instruction asked on behalf of the appellant that the statute was unconstitutional, and the giving of instructions on the part of the appellee which assumed its validity. There is no abstract in the case which shows any assignment of cross errors questioning this action of the court, and appellant occupied the attitude, as appellee in the appellate court, of affirming the validity and regularity of the proceeding. In this condition of the case it must be held to have been content with the rulings of the trial court, and consequently no question of the kind suggested was involved in the appellate court. It was not necessary to consider such a question in the appellate court, and, if that was the ground of the motion, as counsel now claims, it was correctly disposed of.

Section 87 of the practice act authorizes the final determination of a case by the appellate court as a result, wholly or in part, of finding the facts concerning the matter in controversy different from the finding of the court from which the case is brought, provided the appellate court shall recite in its final judgment the facts as found. This section has been acted upon in numerous cases, and it has always been held that the only question which can be presented to this court is whether the facts as found and recited in the judgment justify the judgment rendered by the appellate court. Brown v. City of Aurora, 109 Ill. 165;Rogers v. Railroad Co., 117 Ill. 115, 6 N. E. 889;Brewing Co. v. Manion, 145 Ill. 182, 34 N. E. 50;Hawk v. Railroad Co., 147 Ill. 399, 35 N. E. 139. The provision was held to be constitutional and valid, and to apply to cases where the issue was tried by a jury. Siddall v. Jansen, 143 Ill. 537, 32 N. E. 384;Neer v. Railroad Co., 151 Ill. 141, 37 N. E. 700. The finding of facts by the appellate court recited in its judgment was intended to bring this case within the provisions of that statute, and shows that reversal of the judgment was the result of the facts found. So far the judgment of the appellate court upon the errors assigned there is unquestionably correct, but upon reversing the judgment the appellate court assessed the damages against appellant, who was the appellee in that court, at the sum of $6,937.65, and rendered a judgment against it for that amount and its costs in the trial court, as well as the costs of appeal, and this presents the only other question involved. Appellant contends that the appellate court did not have power to assess damages, and enter the judgment for damages and costs, and that the assumption of the power is a violation of the constitutional right to a trial by jury.

The right of trial by jury, which is preserved by the constitution, is the right as it had been enjoyed before the adoption of that instrument. Ross v. Irving, 14 Ill. 171; Insurance Co. v. Scammon, 123 Ill. 601, 14 N. E. 666. The question whether a statute infringes the constitutional provision that the right to trial by jury as theretofore enjoyed shall remain inviolate raises a purely historical question, and nothing else. It is not to be determined by a consideration of what the legislature ought to do in providing for the submission of issues to a jury. But such arguments are to...