Freeport Motor Cas. Co. v. Madden

Decision Date22 December 1933
Docket NumberNo. 21984.,21984.
Citation354 Ill. 486,188 N.E. 415
PartiesFREEPORT MOTOR CASUALTY CO. v. MADDEN.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Appellate Court, Second District, on Error to Circuit Court, Kankakee County; Arthur W. De Selm, Judge.

Proceedings in garnishment by John P. Madden, to the use of Jose Byrd, against the Freeport Motor Casualty Company. To review an order of the Appellate Court dismissing a writ of error seeking to review judgment for plaintiff, defendant brings certiorari.

Affirmed.Snapp, Heise & Snapp, of Joliet, for plaintiff in error.

Dyer & Dyer, of Hoopeston, and Miller & Shapiro, of Kankakee, for defendant in error.

JONES, Justice.

This cause is here on certiorari to review an order of the Appellate Court dismissing a writ of error on the ground that a judgment in garnishment can be reviewed only on appeal.

Jose Byrd recovered a judgment against John P. Madden in the circuit court of Kankakee county for $4,000. Upon the return of an execution nulla bona, garnishment proceedings were instituted by Madden, for the use of Byrd, against the Freeport Motor Casualty Company, and a judgment was obtained against the defendant garnishee for $4,129.82 and costs. Orders for appeal were taken, a bond was filed and approved, and a bill of exceptions was signed, all in apt time. Notwithstanding the appeal, the garnishee sued out a writ of error from the Appellate Court for the Second District. Upon motion of Madden it was dismissed, as above stated. The claim is made by the garnishee that such a judgment may be reviewed either on appeal or writ of error. Madden contends that the judgment can be reviewed only on appeal.

In this state the right to appeal from a judgment or order of a nisi prius court in civil proceedings is purely statutory, and it is within the power of the Legislature to prescribe the cases in which and the court to which a litigant may bring a cause for review by that method. But the writ of error, unless abolished by statute, is a writ of right applicable to all cases in which jurisdiction is exercised according to the course of the common law but inapplicable to cases not known to or in derogation of the common law (City of Chicago v. Chicago Steamiship Lines, 328 Ill. 309, 159 N. E. 301, 304;People v. Emmerson, 294 Ill. 219, 128 N. E. 385) unless otherwise provided by statute. Generally speaking, the Legislature of this state has not chosen to extend the right to cases which are purely statutory. In instances where the writ is permitted for the purpose of reviewing a statutory proceedingthe authority is by express legislation. In Haines v. People, 97 Ill. 161, it was declared that the right of review by writ of error exists independently of any statutory or constitutional provision, by force of the common law, in all cases in which jurisdiction of such inferior court is exercised according to the course of the common law, and in that class of cases the writ is available whether an appeal is given or not. In Kingsbury v. Sperry, 119 Ill. 279, 10 N. E. 8, 9, a writ of error was sued out to reverse an order of the county court permitting a guardian to mortgage his ward's real estate. This court through Mr. Justice Scholfield said: ‘It is not claimed that the county court, in making the orders questioned, was in the exercise of a jurisdiction according to the course of the common law. On the contrary, it is clear that the jurisdiction exercised was unknown to the common law, and was purely statutory. In such cases, where, as here, and appeal is given to the circuit court, a writ of error does not lie from this court.’ The writ of error was accordingly dismissed.

A corollary of the rule thus adopted by this court is that in proceedings which are purely statutory and in which the jurisdiction of the court is not exercised according to the course of the common law there can be no review of the judgment of an inferior court unless it is specifically provided for by statute, and then the review must be had in the manner prescribed. Hart Bros. v. West Chicago Park Com're, 186 Ill. 464, 57 N. E. 1036; City of Chicago v. Chicago Steamship Lines, supra; Allerton v. Hopkins, 160 Ill. 448, 43 N. E. 753. In statutory proceedings a writ of error is not a writ of right, and the Legislature may deny review altogether or it may provide for a review by some method other than by writ of error. Hart Bros. v. West Chicago Park Com'rs, supra; Saylor v. Duel, 236 Ill. 429, 86 N. E. 119,19 L. R. A. (N. S.) 377;Lake Shore & Michigan Southern Railway Co. v. Richards, 152 Ill. 59, 38 N. E. 773,30 L. R. A. 33;Loomis v. Hodson, 224 Ill. 147, 79 N. E. 590. The writ of error, independent of constitutional or legislative...

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17 cases
  • Jones v. Motorbuses
    • United States
    • Michigan Supreme Court
    • February 2, 1939
    ...the prescribed requirements sue out a summons in an ordinary action. 4 C.J.S. Appeal and Error, § 11, p. 71. See Freeport Motor Cas. Co. v. Madden, 354 Ill. 486, 188 N.E. 415;City of Moberly v. Lotter, 266 Mo. 457, 181 S.W. 991;Hull v. Denver Tramway Corp., 97 Colo. 523, 50 P.2d 791; Ridgel......
  • Superior Coal Co. v. O'Brien
    • United States
    • Illinois Supreme Court
    • September 14, 1943
    ...law, where an appeal or alternative method of review is expressly given, review by writ of error does not lie. Freeport Motor Casualty Co. v. Madden, 354 Ill. 486, 188 N.E. 415;City of Chicago v. Chicago Steamship Lines, 328 Ill. 309, 159 N.E. 301;People v. Piccolo, 275 Ill. 453, 114 N.E. 1......
  • Standard Acc. Ins. Co. v. Leslie
    • United States
    • U.S. District Court — Eastern District of Illinois
    • May 13, 1944
    ...alleged insurer on its policy to the judgment debtor. Chapter 62, sections 1-32, Illinois Revised Statutes; Freeport Motor Casualty Company v. Madden, 354 Ill. 486, 489, 188 N.E. 415; Zimek v. Illinois National Casualty Company, 370 Ill. 572, 19 N.E.2d 620; Ancateau v. Commercial Casualty I......
  • In re Bates
    • United States
    • U.S. Bankruptcy Court — Northern District of Illinois
    • January 6, 1993
    ...unknown to the common law. First Finance Co. v. Pellum, 62 Ill.2d 86, 91, 338 N.E.2d 876, 879 (1975); Freeport Motor Casualty Co. v. Madden, 354 Ill. 486, 489, 188 N.E. 415, 416-17 (1933). Accordingly, the Illinois wage deduction law is strictly construed. Madden, 354 Ill. at 489, 188 N.E. ......
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