Hosking v. Southern Pac. Co.

• Decision Date: 02 February 1910
• Citation: 90 N.E. 669,243 Ill. 320
• Parties: HOSKING v. SOUTHERN PAC. CO.
• Court: Illinois Supreme Court

243 Ill. 320

90 N.E. 669

HOSKING

v.SOUTHERN PAC. CO.

Supreme Court of Illinois.

Dec. 22, 1909.

Rehearing Denied Feb. 2, 1910.

Error to Branch Appellate Court, First District, on Error to Municipal Court of Chicago; William N. Cottrell, Judge.

Action by Ben T. Hosking against the Southern Pacific Company.Judgment for plaintiff was reversed by the Appellate Court, and plaintiff brings error on a certificate of importance.Affirmed.

This suit was commenced by the plaintiff in error as an action of the fourth class in the municipal court of Chicago.The bill of particulars stated: ‘Plaintiff's claim is for the value of a trunk and contents, the property of plaintiff, lost by defendant while same was in its possession at or near the city of San Francisco, state of California, on or about the 18th day of April, 1906.’The plaintiff in error claimed that the trunk was delivered to defendant in error in San Francisco just preceding the fire resulting from the earthquake there, and that while in the possession of defendant in error it was destroyed.The defendant in error denied that the trunk and its contents had been delivered to it.A trial by the court without a jury was had the 24th of December, 1907, and a judgment rendered for plaintiff in error for the sum of $997.50 and costs.Immediately upon the court announcing its finding, defendant in error made an oral motion for a new trial, which appears to have been overruled promptly and without argument.On the 18th of January, and within 30 days from the date of the trial and judgment, defendant in error filed a written motion to set aside and vacate the judgment and for a new trial.This motion was not passed upon until February 8th, when it was overruled.Defendant in error thereupon asked and was allowed 30 days' time from that date to prepare and present a bill of exceptions.On the 17th day of February, more than 30 days after the judgment was entered, but within 30 days after the motion for a new trial was overruled, the defendant in error sued a writ of error out of the Appellate Court for the First district to review the judgment of the municipal court.Said Appellate Court reversed the judgment of the municipal court with a finding of facts, and rendered judgment against defendant in error in that court(plaintiff in error here) for costs.The Appellate Court granted a certificate of importance, and the plaintiff in error sued a writ of error out of this court to the Appellate Court to review that judgment of that court.

Sheriff, Dent, Dobyns & Freeman, for plaintiff in error.

John Maynard Harlan and Lewis W. McCandless(Oliver B. Wyman, of counsel), for defendant in error.

PER CURIAM.

It is first contended by plaintiff in error that the Appellate Court had no jurisdiction to issue the writ of error and review the judgment in this case.The argument made in support of this contention is that the municipal court of the city of Chicago is not a part of the judicial department of the state government, but is an integral part of the city government of Chicago, established under authority of a constitutional amendment, and that said municipal court is so essentially different from any courts in existence before said constitutional amendment was adopted that statutes previously enacted relating to the jurisdiction of appellate courts and to the practice and procedure therein have no application to the municipal court of the city of Chicago.From this it is argued that the jurisdiction of the Appellate Court to review judgments of the municipal court is dependent upon the municipal court act alone, and it is insisted that this is a subject not embraced in the title of the act, and therefore the provisions relating to the judrisdiction of the Appellate Court to review judgments of the municipal court are invalid, as being in violation of section 13 of article 4 of the Constitution, which provides that an act of the Legislatureshall not embrace more than one subject and that shall be expressed in the title.

The title of the municipal court act is ‘An act in relation to a municipal court in the city of Chicago.’Hurd'sRev. St. 1908, c. 37, §§ 264-330.While it is true the municipal court is part of a scheme for local government for the city of Chicago, it is in all essential respects a city court.This was so held in Miller v. People, 230 Ill. 65, 78, 82 N. E. 521, 524, where this court, after referring to the status and jurisdiction of various courts established under other constitutional provisions within and for cities and to decisions defining their powers and jurisdiction, said: ‘In these casesthe courts were called courts of common please, city courts, or a recorder's court, but they were all municipal courts under various names, and were the same kind of courts as the municipal court of Chicago.It must be held that the General Assembly in proposing, and the people in adopting, the amendment had in view the construction uniformly given by this court as to territorial limits of the city or municipal courts.’That being true, the jurisdiction of the Appellate Court was not dependent upon the municipal court act.Its jurisdiction existed by reason of the act establishing Appellate Courts, which gives them jurisdiction to review judgments of city courts.Moreover, in our view, section 23 of the municipal court act does not purport to confer jurisdiction upon the Appellate Court to review judgments of said municipal court.So much of that section as is necessary for the purposes of this opinion reads as follows: ‘That the final orders and judgments of the municipal court in cases of the fourth class * * * shall be reviewed by writ of error only.* * * The time within which a writ of error may be sued out in any such case shall be limited to thirty days after the entry of the final order or judgment complained of.’That section is not an attempt to confer appellate jurisdiction on any court, but is merely a recognition of the jurisdiction of courts already existing, and a limit is provided to the time within which writs of error may be sued out of the Appellate Court in the exercise of its jurisdiction existing under other provisions to review judgments of the municipal court.The title of the act creating the criminal court of Cook county is, ‘An act to revise the law in relation to the criminal court of Cook county’(Hurd'sRev. St. 1908, c. 37, §§ 83-88b), and section 6 of the act provides for the review of the judgments of that court appeal or writ of error; yet the validity of the act has never been questioned, so far as we know, on the ground that it was in violation of section 13 of article 4 of the Constitution.The same may also be said of the acts relating to county courts, probate courts, and city courts, none of which have a more comprehensive title than the municipal court act.

Section 23 of the municipal court act provides that judgments of that court in cases of the fourth class shall be reviewed by writ of error only, and the time for suing out the writ in such cases is limited to 30 days ‘after the entry of the final order or judgment complained of.’It will be seen from the statement preceding this opinion that the judgment of the municipal court was entered December 24, 1907.January 18, 1908, defendant filed a motion to set aside and vacate the judgment and for a new trial.This motion was filed within 30 days after the entry of the judgment, but was not passed upon within that period.It was continued from time to time until February 8, 1908, when it was overruled.Within 30 days after this motion was overruled the writ of error was sued out of the Appellate Court.Plaintiff in error, who was defendant in error in the Appellate Court, moved the court to dismiss the writ, among other reasons, because it was not sued out in time, and also to strike from the record the statement of facts certified by the municipal court.These motions were denied; the Appellate Court holding that the writ was sued out in apt time and that the statement of facts was properly certified by the court.There is no dispute that the judgment was, in fact, entered by the municipal courtDecember 24th, considerably more than 30 days before the writ of error was sued out of the Appellate Court.The question then arises, what, if any, effect the motion to vacate and set aside the judgment, made within 30 days after it was rendered, but not disposed of until more than 30 days after that time, had in fixing the time when the judgment became final, and the time allowed for suing out a writ of error began to run.

There are no terms of the municipal court, but section 21 of the municipal court act gives that court the same power to vacate judgment within 30 days after their rendition that circuit courts have to vacate judgments at the same term at which they are rendered.It is not denied by plaintiff in error that the entry of a motion at the term at which a judgment is rendered, to vacate it, may be continued to a subsequent term, and the court thereby retain jurisdiction to dispose of the motion by either allowing or denying it.The contention is, however, that this does not stay the running of the time fixed within which the writ may be sued out.It is argued that in courts having terms fixed by law, although by making a motion to vacate the judgment at the term at which it was rendered and continuing it to a subsequent term the court retains jurisdiction of the case to determine said motion, the judgment cannot be reviewed on appeal after the determination of the motion, because the statute requires appeals to be prayed and allowed at the term at which the judgment was entered; and it is also insisted that the same rule is applicable to municipal court judgments, and that, while they have no terms fixed by law, the statute authorizes the review of judgments of that court in cases of...