Goodrich v. Sprague

• Decision Date: 12 January 1944
• Docket Number: No. 27227.,27227.
• Citation: 52 N.E.2d 250,385 Ill. 200
• Parties: GOODRICH v. SPRAGUE.
• Court: Illinois Supreme Court

385 Ill. 200

52 N.E.2d 250

GOODRICH

v.SPRAGUE.

No. 27227.

Supreme Court of Illinois.

Nov. 16, 1943.

As Modified on Denial of Rehearing Jan. 12, 1944.

Action by Wallace J. Goodrich, administrator, against A. A. Sprague, receiver for the Chicago, North Shore & Milwaukee Railroad Company, for wrongful death at railroad crossing. From a judgment in conformity with mandate of Appellate Court, the defendant appeals.

Appeal dismissed.Appeal from Circuit Court, Cook County; William J. Wimbiscus, judge.

Gardner, Morrow, Fowler & Merrick, of Chicago (Walter M. Fowler, of Chicago, of counsel), for appellant.

Topliff, Horween & Merrick, of Chicago (Samuel Topliff and Hubert C. Merrick, both of Chicago, of counsel), for appellee.

GUNN, Justice.

Judgment for plaintiff in a personal injury suit was entered by the circuit court of Cook county. Defendant has appealed to this court direct because it says the judgment was taken and entered in violation of the constitutions of the State of Illinois and of the United States. Appellee replies that such constitutional questions, if any, are no longer debatable and the case should be transferred to the Appellate Court. In order to determine whether we have jurisdiction, and if so, to decide the issues, an understanding of the several proceedings thus far in the courts is necessary. The parties will be hereafter referred to as plaintiff and defendant.

The plaintiff brought suit against A. A. Sprague, receiver for the Chicago, North Shore & Milwaukee Railroad Company, to recover for the wrongful death of Frances Goodrich on a railroad crossing in the village of Glencoe. The cause was submitted to a jury and a verdict returned in favor of the plaintiff. The defendant moved for a judgment notwithstanding the verdict, and in the alternative for a new trial. The circuit court entered judgment notwithstanding the verdict. There was no ruling upon the motion for a new trial at that time.

Plaintiff appealed to the Appellate Court, where the judgment of the circuit court was reversed and judgment entered in the Appellate Court against the defendant. On writ of error from this court to the Appellate Court the judgment of the Appellate Court reversing the judgment notwithstanding the verdict was upheld, but the cause was reversed and remanded to the trial court to pass upon the defendant's motion for a new trial. Goodrich v. Sprague, 376 Ill. 80, 32 N.E.2d 897. Upon remandment to the circuit court the motion for a new trial was considered and granted. Plaintiff appealed from the order granting a new trial, pursuant to section 77 of the Civil Practice Act, Ill.Rev.Stat. 1943, c. 110, § 201. The Appellate Court reversed the order of the circuit court, and remanded the cause with directions that the ‘trial court set aside order granting a new trial and for further proceedings in due course.’ 314 Ill.App. 671, 42 N.E.2d 337, 338. Thereafter defendant filed a petition for leave to appeal to this court (No. 26850), which was dismissed at the September Term, 1942. It is unnecessary to recite the facts, as they are fully set out in 304 Ill.App. 556, 26 N.E.2d 884; 314 Ill.App. 671, 42 N.E.2d 337; and 376 Ill. 80, 32 N.E.2d 897.

When the mandate of the Appellate Court in the second case was filed and motion made by plaintiff for the reinstating and redocketing of said cause, and for an order setting aside the order granting a new trial and for judgment upon the verdict, the defendant filed written objections to following the mandate of the Appellate Court, and among other objections asserted the judgment of the Appellate Court was violative of sections 11 and 12 of article VI, and sections 2 and 5 of article II of the constitution of the State of Illinois, Smith-Hurd Stats., and of section I of the Fourteenth Amendment of the Constitution of the United States. These objections were overruled by the circuit court, and judgment entered on the verdict.

Defendant asserts that in this manner it has preserved a right to appeal from the judgment of the circuit court directly to this court. The manner in which defendant has been deprived of the benefit of the provisions of the constitution invoked is thus stated in its brief: ‘The Appellate Court was without power to determine that the weight of the evidence was with the plaintiff upon the issue of the defendant's negligence, due care of decedent, and the amount of damages, and was without power to determine finally any matter of law relating to the merits of the case, and upon such determinations of law and fact by the court, direct that the order granting a new trial be vacated.’ To make its point more precise it adds: ‘In other words in cases where the trial court should have directed a verdict as a matter of law against the party obtaining a new trial, and none other, the Appellate Court may give such directions.’ Perusal of the argument of appellant discloses the foregoing is an accurate resumé of the effect of the constitutional provisions invoked by it.

We have recently had before us several cases in which the constitutional questions urged by appellant, as affecting the power and jurisdiction of the Appellate Court, have been discussed, analyzed and decided. In the case of Corcoran v. City of Chicago, 373 Ill. 567, 27 N.E.2d 451, there was a judgment for the plaintiff in the trial court. A motion for a new trial was denied and judgment entered. The Appellate Court reversed the judgment and remanded the cause, but upon an affidavit that no further evidence could be adduced by either side the remanding order was stricken, and the Appellate Court found the verdict was against the evidence and reversed the case for want of sufficient evidence. The cause was reviewed upon writ of error upon the contention of the plaintiff that section 92 (3)b of the Civil Practice Act, providing that the Appellate Court might review errors of fact in that the judgment, decree or order appealed from was not sustained by the evidence or was against the weight of the evidence, was unconstitutional in that it deprived the successful party of the benefit of a jury trial. After a careful review of the rule at common law, as well as decisions under the statutes of Illinois on this subject from the earliest enactment down to date, we held that section 92(3)b did not violate the Constitution in depriving the parties of a jury trial, and that it was within the power of the Appellate Court to hold the decree or order appealed from was not sustained by the evidence.

Following the Corcoran case the first appeal in this case came to this court in Goodrich v. Sprague, 376 Ill. 80, 32 N.E. 2d 897. After the jury had returned the verdict a motion for judgment notwithstanding the verdict and, in the alternative, for a new trial, was filed. The trial court entered judgment notwithstanding the verdict, but did not pass upon the motion for a new trial. The plaintiff appealed and the Appellate Court reversed the action of the circuit court in entering judgment notwithstanding the verdict, denied the motion for new trial, and entered judgment in that court for the plaintiff. Defendant contended section 68(3)c of the Civil Practice Act, purporting to authorize the action of the Appellate Court, was unconstitutional, and prosecuted a writ of error from this court to review its actions, which we held was the correct practice. Corcoran v. City of Chicago, 373 Ill. 567, 27 N.E.2d 451;Bagdonas v. Liberty Land & Investment Co., 309 Ill. 103, 140 N.E. 49. After a review of the constitutional and statutory provisions with respect to the powers of the Appellate Court we held that when the Appellate Court passed upon the motion for new trial, which had not been passed upon by the circuit court, it was exercising original jurisdiction, and said that section 68(3)c ‘so far as it purports to grant power to the Appellate Court to pass upon a motion for a new trial not passed on by the trial court and to enter judgment on the verdict of the jury, is unconstitutional as an attempt by legislation to confer original jurisdiction upon a reviewing court, prohibited by the constitution of this State. Had the trial court passed on both motions this question would not have arisen.’ [376 Ill. 80, 32 N.E.2d 900]. Almost the same state of facts is disclosed in Walaite v. Chicago, Rock Island & Pacific R. Co., 376 Ill. 59, 33 N.E.2d 119, where the Goodrich case was followed.

Herb v. Pitcairn, 377 Ill. 405, 36 N.E.2d 555, presents a situation slightly different. In that case there was a verdict for the plaintiff. Motions were made for a directed verdict at the close of the plaintiff's evidence and at the close of all the evidence, with rulings on such motions reserved. After the verdict was returned for plaintiff defendant made a motion for judgment notwithstanding the verdict, which was allowed by the court. Upon plaintiff's appeal the Appellate Court reversed the action of the trial court and entered judgment for the plaintiff. 306 Ill. App. 583, 29 N.E.2d 543. In this court on review we held that if a motion for judgment notwithstanding the verdict is denied, the party moving may apply for a new trial, and in case the motion for judgment notwithstanding the verdict is allowed and later reversed by the Appellate Court, upon remandment the defendant is not deprived of the right to have the circuit court pass upon a motion for a new trial. And we accordingly held in the Herb case that the Appellate Court, on an appeal from a judgment notwithstanding the verdict in case of reversal, is without power to enter judgment on the verdict, but should remand the cause to the trial court for the opportunity to make a motion for a new trial, which, if overruled, entitled the plaintiff to judgment on the verdict.

The Herb case follows Goodrich v. Sprague, 376 Ill. 80, 32 N.E.2d 897, in holding that so far as section 68(3)c of the Civil Practice Act purports to authorize the Appellate Court to exercise original...