Harris v. Chicago House-Wrecking Co.

• Decision Date: 16 December 1924
• Docket Number: No. 15211.,15211.
• Parties: HARRIS v. CHICAGO HOUSE-WRECKING CO.
• Court: Illinois Supreme Court

314 Ill. 500

145 N.E. 666

HARRIS

v.CHICAGO HOUSE-WRECKING CO.

No. 15211.

Supreme Court of Illinois.

Dec. 16, 1924.

Action by Leroy Harris against the Chicago House-wrecking Company. From a judgment of the Appellate Court (226 Ill. App. 220), affirming an order striking case from docket, plaintiff appeals.

Judgment reversed, and cause remanded to Circuit Court.Appeal from Third Branch, Appellate Court, First District, on Appeal from Circuit Court, Cook County; Donald L. Morrill, Judge.

Charles H. Aldrich and Wharton Plummer, both of Chicago, for appellant.

Willard M. McEwen, Menz I. Rosenbaum, and Isadore S. Blumenthal, all of Chicago, for appellee.

DUNCAN, C. J.

On July 2, 1913, appellant, Leroy Harris, filed his declaration in the circuit court of Cook county against appellee, the Chicago House-wrecking Company, for personal injuries alleged by him to have been received in December, 1911, while in the employ of appellee on the Isthmus of Panama, in territory of the United States. Appellee filed a plea of not guilty. On July 18, 1914, an order was entered by one of the circuit judges of Cook county striking the case from the docket. On June 17, 1915, this case, with others which had been stricken from the docket, was redocketed and placed on the trial call for the following day, by the peremptory order of one of the circuit judges. The case was called for trial on June 18, 1915, and was dismissed for want of prosecution. On October 16, 1915, after the term had expired in which the order was entered dismissing the cause for want of prosecution, the attorney for appellant gave notice to appellee's attorney that he would appear before a judge of the circuit court of Cook county and ask that the cause be reinstated on the docket. It appears from the files in the case that the following motion and statement, subscribed and sworn to by Charles H. Aldrich before a notary public, was also filed:

‘Charles H. Aldrich, being first duly sworn, on oath states that in the above-entitled cause, through mistake and inadvertence in his office, the said cause was stricken off of the calendar on July 18, 1914; that, having no knowledge that the case had been so stricken, affiant was not advised and had no knowledge that it was a case within the order of January 22, 1915, and did not, therefore, look for the case in the calendar, made up pursuant to said order, of all common-law cases stricken from the docket from the date of the Chicago fire to and including the 31st day of December, 1914, and, being so ignorant, the case was again stricken from said last-named calendar on June 18, 1915; that a great and irreparable injury will be done to plaintiff in said cause, if it is not reinstated, owing to the fact that the statute of limitations will have run, and that said injury has resulted through the oversight, in affiant's office, of the fact that said cause was originally stricken. Affiant therefore asks that the said cause may be reinstated and set down for trial at such time as the court may direct.’

On October 16, 1915, on a hearing on the foregoing motion, this order was entered by the court, Hon. Frederick A. Smith presiding as judge:

‘On motion of Charles H. Aldrich, solicitor for plaintiff, and over objections of the attorneys for the defendant to the jurisdiction of the court to enter such order, it is ordered and directed that this cause be restored to the docket of this court and stand for trial in its regular order.’

The cause was again placed on the trial calendar pursuant to said order, and assigned to Judge Barrett, and upon call it was ordered set for trial May 21, 1919, but by mistake of the clerk of the court it was placed on the trial call for April 21, 1919, and called for trial on April 28, 1919. Appellant failing to appear, it was dismissed for want of prosecution, at the costs of the plaintiff. This order of dismissal was set aside pursuant to notice and other proceedings, under section 89 of the Practice Act, on June 5, 1919, before Judge Barrett as presiding judge. This order was not challenged or questioned by appeal or writ of error, and the case was again placed on the trial calendar for July 1, 1919, and on July 8, 1919, an order was entered continuing the cause generally. On March 7, 1921, the cause was again called for trial before Judge Morrill, and appellee filed its objection to the further consideration of it by the court for the alleged reason that jurisdiction of the cause had been lost by the order of dismissal of June 18, 1915; that Judge Smith had no jurisdiction to enter the order on October 16, 1915, restoring the cause on the docket and ordering it to stand for trial in its regular order; and that all orders thereafter entered were invalid and without jurisdiction. The court sustained the objection, and entered an order finding that it ‘lost jurisdiction of said cause at the time of the first order of dismissal herein appearing on the record, and has never regained such jurisdiction, and that no further proceedings should or could be had thereon, and said cause should no longer appear on the docket.’ To this order of the court appellant excepted, and appealed to the Appellate Court for the First District. That court affirmed the order appealed from and has granted a certificate of importance and an appeal to this court.

[1][2]The order of Judge M. Goorty of June 18, 1915, dismissing the suit for want of prosecution, was undoubtedly a final, appealable order in the case. It disposed of the case entirely, and, unless the order was set aside within the term in which the order was made under the equitable powers of the court, or reversed by appeal or writ of error. or under section 89 of the Practice Act, the court's jurisdiction of the cause was completely lost, and a further consideration of the case by the trial court for any purpose would not be warranted under the law. Appellant's contention is that the order dismissing the suit was revoked or recalled by the order of Judge Smith of October 16, 1915, and that the cause was thereby reinstated. He also contends that the proceeding under which Judge Smith entered the order was a proceeding under section 89 aforesaid, and that Judge Smith, so regarded it. We must assume that this latter position is correct, as a proceeding under such section was the only one applicable or available to appellant, as the term had expired in which the order of dismissal had been entered. We are also of the opinion that the order of dismissal was effectively recalled, and the cause by his order reinstated, and, as the order has never been reviewed by writ of error, appeal, or by certiorari, the judgments of the Appellate Court and the circuit court must be reversed.

[3] Section 89 of the Practice Act (Smith-Hurd Rev. St. 1923, c. 110) abolishes the writ of error coram nobis, and provides that all errors of fact committed in the proceedings of any court of record which by the common law, could have been corrected by said writ may be corrected by the court in which the error was committed, on motion made at any time within five years after the rendition of the final judgment in the case, upon reasonable notice. We have frequently stated that a final judgment under such section can be reversed or recalled by the trial court for errors of fact only, and we have pointed out very clearly what errors of fact, when alleged and proved, are sufficient to warrant the recall or reversal of such a judgment.We have held that, though this section of the statute abolishes the writ of error coram nobis, still the practice under said section is governed by the same rules of practice as prevail at common law under said writ, and that the errors of fact that may be corrected under the statute are such errors as could have been corrected under the writ it abolishes.

[4] The motion provided for under the statute is the plaintiff's declaration in the new suit to reverse or recall the judgment, and our...