George v. George

• Decision Date: 07 June 1911
• Citation: 95 N.E. 167,250 Ill. 251
• Parties: GEORGE et al. v. GEORGE et al.
• Court: Illinois Supreme Court

250 Ill. 251

95 N.E. 167

GEORGE et al.

v.GEORGE et al.

Supreme Court of Illinois.

April 19, 1911.

Rehearing Denied June 7, 1911.

Error to Superior Court, Cook County; George A. Dupuy, Judge.

Action by Linville H. George and others against Samuel E. George and others. From a decree for plaintiffs, defendants bring error. Reversed and remanded.Daniel S. Wentworth (Harvey J. Cavender, of counsel), for plaintiffs in error.

Fred H. Atwood, Frank B. Pease, and Charles O. Loucks, for defendants in error.

COOKE, J.

This is a writ of error sued out to review a decree for the partition of real estate, entered in the superior court of Cook county of March 29, 1907. The writ was issued on September 20, 1910, and the defendants in error have filed their plea of the statute of limitations, alleging that under section 117 of the practice act (Laws 1907, p. 466) the plaintiffs in error are barred from suing out their writ of error; the same not having been done within three years, as provided by said section. To this plea plaintiffs in error have filed a demurrer, claiming that they are not governed by the act of 1907, limiting them to three years within which to prosecute their writ of error, but that their rights accrued under the former statute, and that they have five years time in which to prosecute their writ, as provided by the laws at the date of the decree.

[1] The only question to be determined is whether the act of 1907 applies to writs of error sued out to review judgments or decrees rendered prior to the passage of that act. If it be held that it does apply, then this writ must be dismissed. If it be held that it does not apply, and the demurrer to the statute of limitations be sustained, then a reversal of the decree must necessarily follow, as the effect of the plea is to confess that there is error in the record for which the decree must be reversed. Mahony v. Mahony, 139 Ill. 14, 28 N. E. 915;Peterson v. Manhattan Life Ins. Co., 244 Ill. 329, 91 N. E. 466.

[2]The jurisdiction of this court to review the judgments and decrees of trial courts in this class of cases by writs of error does not depend upon the statute. The jurisdiction is conferred by the Constitution, and the right to sue out a writ of error is a constitutional right, and must be allowed when claimed. Schlattweiler v. St. Clair County, 63 Ill. 449. Section 2 of article 6 of the Constitution provides that the Supreme Court shall have original jurisdiction in cases relating to the revenue, in mandamus and habeas corpus, and appellate jurisdiction in all other cases. Section 8 of the same article provides that appeals and writs of error may be taken to the Supreme Court. In this case a freehold is involved, and the parties to this decree have a constitutional right to sue out a writ of error in this court to review that decree.

[3] It is not within the power of the Legislature to deprive the Supreme Court of the jurisdiction to review such cases by writs of error, or in any manner to abridge that jurisdiction; but the Legislature may by proper enactment regulate the practice in respect to writs of error, and may limit the time within which writs of error may be sued out of this court.

[4] Section 117 of the practice act of 1907 does not attempt or pretend to confer jurisdiction upon the Supreme Court to review judgments and decrees by writs of error, but merely limits the time within which such writs may be sued out. It is strictly a statute of limitations, and must be construed as such.

[5] We have repeatedly held that the suing out of a writ of error is the beginning of a new suit. Ripley v. Morris, 2 Gilman, 381;Roberts v. Fahs, 32 Ill. 474;International Bank v. Jenkins, 107 Ill. 291;Singer & Talcott Stone Co. v. Hutchinson, 176 Ill. 48, 51 N. E. 622. The rules which govern the application of statutes of limitations to other causes of action should therefore be applied here. In the early case of Thompson v. Alexander, 11 Ill. 54, it was held that the amendment of February 10, 1849 (Laws 1849, p. 132), to the limitation act, operated only in causes of action accruing after it took errect. That was an action in debt brought on a promissory note maturing May 11, 1838. The defendant pleaded the statute of limitations, and set up that the cause of action had accrued more than 5 years before the commencement of the suit. Prior to the amendment of February 10, 1849, actions in debt could be brought on promissory notes at any time within 16 years after the right of action accrued. That act limited the bringing of such actions to 5 years, and we held that a retrospective effect will not be given to such an act, unless it clearly appears that such was the intention of the Legislature, which intention must be manifested by clear and unequivocal expressions; and in the absence of any such intention of the Legislature having been so manifested, it was further held that the provisions of that act should only apply to causes of action arising...