Herb v. Pitcairn

• Decision Date: 12 November 1943
• Docket Number: No. 27275.,27275.
• Citation: 51 N.E.2d 277,384 Ill. 237
• Parties: HERB v. PITCAIRN et al.
• Court: Illinois Supreme Court

384 Ill. 237

51 N.E.2d 277

HERB

v.PITCAIRN et al.

No. 27275.

Supreme Court of Illinois.

Sept. 24, 1943.

Rehearing Denied Nov. 12, 1943.

Action under the Federal Employers' Liability Act, § 1 et seq., 45 U.S.C.A. § 51 et seq., by Victor J. Herb against Norman B. Pitcairn and others, receivers for Wabash Railway Company, to recover for injuries allegedly sustained by plaintiff while in the employ of defendants. From a judgment of dismissal, plaintiff appeals.

Judgment affirmed.Appeal from Circuit Court, Madison County; D. H. Mudge, judge.

McGlynn & McGlynn, of East St. Louis, and Mark D. Eagleton and Roberts P. Elam, both of St. Louis, Mo., for appellant.

Warnock, Williamson & Burroughs, of Edwardsville, for appellees.

GUNN, Justice.

The appeal in this case is taken by the plaintiff, Victor J. Herb, from the judgment of the circuit court of Madison county sustaining the defendants' motion to dismiss, and entering final judgment of dismissal in favor of defendants-appellees. Among the grounds urged before the circuit court as a basis for such dismissal was the unconstitutionality of a statute, as shown by the certificate of the trial judge, which would give us jurisdiction of the direct appeal, whether or not the case was decided upon that point. Groome v. Freyn Engineering Co., 374 Ill. 113, 28 N.E.2d 274.

The facts in the case are substantially as follows: The plaintiff was an employee of the receivers of the Wabash Railway Company, and December 22, 1937, commenced an action in the city court of Granite City, Illinois, against the defendants stating a cause of action under the Federal Employers' Liability Act for injuries claimed to have been sustained in the city of Decatur, Illinois, November 23, 1936. The defendants answered denying the allegations of the complaint and setting up other defenses. The cause was tried in the city court in October, 1938, and resulted in a verdict in favor of the plaintiff, which was set aside upon a motion by the defendants for judgment notwithstanding the verdict.

The plaintiff appealed to the Appellate Court, where the cause was reversed and remanded, which action was affirmed by this court in Herb v. Pitcairn, 377 Ill. 405, 36 N.E.2d 555. After the cause had been redocketed, but before it was tried, the cases of Werner v. Illinois Central Railroad Co., 379 Ill. 559, 42 N.E.2d 82, and Mitchell v. Louisville & Nashville Railroad Co., 379 Ill. 522, 42 N.E.2d 86, were decided by this court, in which it was held and determined the city courts in Illinois were without jurisdiction to hear and determine the subject matter of any action, the cause of which arose outside of the territorial limits of the city court in which the action was pending. After learning of these decisions the plaintiff filed a motion in the city court of Granite City for a change of venue to the circuit court of Madison county, under the provisions of the statute purporting to authorize a change of venue of a suit commenced in the wrong court or county to the proper court or county, as in cases of change of venue. (Ill.Rev.Stat.1941, chap. 146, par. 36.) The motion for change of venue was allowed by the city court and the venue ordered changed to the circuit court of Madison county, and on July 31, 1942, all of the pleadings and papers, and a certified transcript of all orders in said cause in the city court of Granite City were duly filed in the circuit court of Madison county, as on change of venue.

August 21, 1942, appellees filed in the circuit court of Madison county their motion to dismiss plaintiff's cause for the following reasons: That since the city court of Granite City had no jurisdiction of the case because it appeared the cause of action accrued outside of the territorial limits of Granite City (1) all orders entered, and all proceedings had in the city court of Granite City, including the order changing the venue thereof, were void and of no effect; (2) that the statute authorizing a city court to change the venue of an action of which it has no jurisdiction to a court having jurisdiction is contrary to section 1 of article VI of the constitution, Smith-Hurd Stats., and therefore void; and (3) said cause having been transferred on change of venue on July 17, 1942, more than two years after the date of the injury, November 23, 1936, the plaintiff could not maintain his action because it had not been commenced within two years from the date of his injury in a court having jurisdiction to hear and determine the same.

The circuit court of Madison county sustained the motion of appellees to dismiss plaintiff's suit, and November 27, 1942, entered judgment that the plaintiff take nothing and that the defendants recover costs. After the entry of judgment the judge of the circuit court signed a certificate that there was involved in the said final order and judgment the construction of the constitutions of the State of Illinois and of the United States, and the validity of a statute, (Ill.Rev.Stat.1941, chap. 146, par. 36,) and also the validity, construction and application of a Federal statute, viz., section 6 of the Federal Employers' Liability Act, as amended. Section 56, Title 45 U.S.C.A.

The material point for consideration is whether the plaintiff has commenced an action within two years of the date of his injury in a court having jurisdiction to hear and determine the same, as required by section 6 of the Federal Employers' Liability Act, by transferring the cause from a court having no jurisdiction over it at a date which, if then originally filed in the latter court, could not be maintained because not filed within the statutory time. The question involved relates to the effect of the proceedings had in a court wholly incompetent to render a valid judgment, because if the judgment to be rendered would be void it necessarily follows the preliminary proceedings of the court, necessary to rendition of judgment, must likewise be void. If the court has no jurisdiction of the subject matter for judgment there can be no jurisdiction giving effect to process or pleadings. If judgment had been entered in the city court it would have been absolutely void. Werner v. Illinois Central Railroad Co., 379 Ill. 559, 42 N.E.2d 82;Mitchell v. Louisville & Nashville Railroad Co., 379 Ill. 522, 42 N.E.2d 86.The act of a tribunal beyond its jurisdiction is null and void whether without its territorial jurisdiction or beyond its powers. Welton v. Hamilton, 344 Ill. 82, 176 N.E. 333. A judgment void upon its face and requiring only an inspection of the record to demonstrate its invalidity is a mere nullity, in legal effect no judgment at all, conferring no right and affording no justification. Voorhees v. Jackson ex dem. Bank of United States, 10 Pet. 449, 475, 9 L.Ed. 490, 501. Nothing can be acquired or lost by it; it neither bestows nor extinguishes any right. Johnson v. Carroll, 190 Ky. 689, 228 S. W. 412;Abernathy v. Missouri Pacific Railway Co., 287 Mo. 30, 228 S.W. 486. It can be attacked at any time, even in the first instant on appeal. Campbell v. Porter, 162 U.S. 478, 16 S.Ct. 871, 40 L.Ed. 1044;Perez v. Fernandez, 202 U.S. 80, 26 S.Ct. 561, 50 L.Ed. 942. And it may not be validated either by waiver or consent. Windsor v. McVeigh, 93 U.S. 274, 23 L.Ed. 914. Where there is a want of authority over the subject matter the judgment is open to successful impeachment, if such fact is made to appear from the face of the record or by matters dehors, where extraneous evidence is receivable for the purpose. Armstrong v. Obucino, 300 Ill. 140, 133 N.E. 58;Rabbitt v. Weber & Co., 297 Ill. 491, 130 N.E. 787.

It is the element of jurisdiction that differentiates a void from a voidable judgment; both the subject matter and the parties must be before the court, and jurisdiction of the one without the other will not suffice; the two must concur or the judgment will be void in any case in which the court assumes to act. Rabbitt v. Weber & Co., 297 Ill. 491, 130 N.E. 787. And we have further held that even a court of general jurisdiction has no power to do any act or render any judgment affecting persons or property, unless the particular act or judgment is brought within its jurisdiction according to law. People ex rel. Brundage v. Righeimer, 298 Ill. 611, 132 N.E. 229. These are general principles upon which substantially all courts are in agreement.

Applying now these principles to the facts before us we observe recovery under the Federal Employers' Liability Act is conditioned upon two things: (1) commencing an action within two years from the date of the injury; and (2) commencing such action in a court having jurisdiction to hear and determine the same. It has been held by the Federal authorities that section 6 of the Federal Employers' Liability Act is not a statute of limitations pertaining to the remedy, but is a condition of liability constituting a substantial part of the right created. Central Vermont Railway Co. v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B, 252;Phillips Co. v. Grand Trunk Railway Co., 236 U.S. 662, 35 S.Ct. 444, 59 L.Ed. 774;Bell v. Wabash Railway Co., 8 Cir., 58 F.2d 569;Atlantic Coast Line Railway Co. v. Burnette, 239 U.S. 199, 36 S.Ct. 75, 60 L.Ed. 226. The plaintiff having predicated his case upon the Federal Employers' Liability Act must comply with its provisions, both with respect to the time of commencing the suit and of bringing it in a court having jurisdiction to hear and determine it.

While the appellant does not precisely so state, apparently it is his contention that, having begun the suit in a court without jurisdiction of the subject matter but having changed the venue thereof and transferred it to one that would have jurisdiction, the date of the transfer to the latter court would relate back to the time of filing it in the court not having jurisdiction, thus giving the order changing the venue the effect of having a case continuously...