Jacobsen v. Friel

• Decision Date: 26 June 1947
• Docket Number: Gen. No. 43407.
• Citation: 74 N.E.2d 147,332 Ill.App. 97
• Parties: JACOBSEN v. FRIEL et al.
• Court: United States Appellate Court of Illinois

332 Ill.App. 97

74 N.E.2d 147

JACOBSEN

v.FRIEL et al.

Gen. No. 43407.

Appellate Court of Illinois, First District, Second Division.

June 26, 1947.

Appeal from Superior Court, Cook County; Michael L. McKinley, Judge.

Action by Jacoby B. Jacobsen against Thomas J. Friel and Charles C. Renshaw, as trustees, etc., and others, doing business as Chicago Surface Lines, for personal injuries. From a judgment for plaintiff for $10,000, the defendants appeal.

Judgment reversed and cause remanded with directions.Frank L. Kriete, of Chicago (Warner H. Robinson, Arthur J. Donovan and William J. Flaherty, all of Chicago, of counsel), for appellants.

H. H. Patterson, of Chicago (Edmund C. Maurer, of Chicago, of counsel), for appellee.

SULLIVAN, Justice.

This appeal seeks to reverse a judgment for $10,000 entered against defendants on the verdict of a jury in an action brought by plaintiff, Jacoby B. Jacobsen, to recover damages for personal injuries alleged to have been sustained by him by reason of defendants' negligence.

For a proper understanding of the only question that requires determination on this appeal it is necessary to refer to two other judgment orders entered by the trial court in this case which were reviewed by us on prior appeals and to the judgment orders entered by this court on said appeals.

After the jury returned its verdict finding defendants guilty and assessing plaintiff's damages at $10,000, defendants filed written motions in the alternative for judgment notwithstanding the verdict and for a new trial. The trial court entered judgment in favor of defendants notwithstanding the verdict but did not pass upon the motion for a new trial. The first of the prior appeals was prosecuted by plaintiff from such judgment. We held on that appeal (Jacobsen v. Cummings, 318 Ill.App. 464, 48 N.E.2d 603, 610,) that ‘plaintiff made out a prima facie case that he was in the exercise of ordinary care for his own safety; that defendants were negligent in the operation of their street car and that their negligence was the proximate cause of his injury’ and our opinion filed therein concluded with the following judgment order: ‘The judgment of the Superior Court of Cook county is reversed and the cause is remanded for the disposition of defendants' motion for a new trial and for such further proceedings as are not inconsistent with the views herein expressed.’ Pursuant to said opinion and judgment order the mandate of this court issued and was filed in the Superior court. The mandate, after setting forth the reversal of the judgment, stated that the cause was remanded to the Superior court of Cook county ‘ for the disposition of defendants' motion for a new trial and for such other and further proceedings as to law and justice shall appertain, as are not inconsistent with the views expressed in the opinion of this court this day filed herein.’ (Italics ours.)

When defendants' motion for a new trial came on for hearing after remandment, the trial judge misconstrued the mandate of this court as a direction to overrule said motion for a new trial, refused to pass upon the merits of the motion or to permit defendants' counsel to argue the alleged errors set forth therein and entered the following judgment order:

‘This cause coming on now to be heard on the motion for new trial heretofore filed in this cause by defendants, doing business as Chicago Surface Lines, said motion being now before the court and counsel for said defendants expressed his intention to argue each of the points set forth in said motion for new trial and stated to the court that the Appellate Court had remanded the cause to this court for the purpose of passing upon said motion for new trial; but the court being of the opinion that the cause was remanded by the Appellate Court for the specific purpose of overruling said motion for a new trial and entering judgment on the verdict, refuses to hear any argument on said motion for a new trial and it is therefore ordered that said motion for a new trial be and the same is hereby overruled and a new trial denied and that judgment be and the same is hereby entered upon the verdict in favor of plaintiff and against the defendants in the sum of $10,000.00 and costs of suit, to which action and ruling of the court, defendants and each of them, by their counsel, then and there duly objected and excepted.’ (Italics ours.)

The second appeal in this case was prosecuted by defendants from the foregoing judgment order. On that appeal we reversed said judgment order because of the erroneous refusal of the trial court to consider and pass upon defendants' motion for a new trial on its merits and remanded the cause ‘ with directions that the trial court pass upon defendants' motion for a new trial and that such other and further proceedings be had as may be appropriate and not inconsistent with this opinion.'

In our opinion filed on the second appeal (Jacobsen v. Cummings, 323 Ill.App. 290, 55 N.E.2d 573, Abst.) we said:

‘There is nothing contained in the opinion or judgment order of this court on the prior appeal or in the mandate issued pursuant thereto that is susceptible of the construction that the trial court was directed by said judgment order or mandate to overrule defendants' motion for a new trial and enter judgment on the verdict. This court had no jurisdiction to consider or determine defendants' motion for a new trial or any questions presented thereby and we did not assume to exercise jurisdiction in that regard. Neither did we have nor assume to exercise jurisdiction to direct the trial court to overrule defendants' motion for a new trial and enter judgment on the verdict. The trial court had exclusive jurisdiction to pass upon the motion for a new trial and this court, having reversed the judgment in favor of defendants notwithstanding the verdict, remanded the cause with the specific direction to the trial court to dispose of defendants' alternative motion for a new trial.

‘The sole question presented on the former appeal was whether there was any evidence in the record which showed or tended to show that plaintiff was not guilty of contributory negligence and that defendants were guilty of negligence which was the proximate cause of plaintiff's injuries or, in other words, whether plaintiff made out a prima facie case as to defendants' liability. In our opinion filed on the prior appeal the only evidence considered or discussed in determining that question was the testimony of plaintiff himself and our discussion of his testimony was necessarily confined exclusively to such question.

‘In the recent case of Goodrich v. Sprague, 376 Ill. 80 , there was a verdict for the plaintiff for $5,000. The defendant therein filed a motion for judgment notwithstanding the verdict and an alternative motion for a new trial. The trial court allowed the motion for judgment notwithstanding the verdict and entered judgment for the defendant. The alternative motion for a new trial was not considered. On appeal this court reversed the judgment entered by the trial court notwithstanding the verdict, passed upon and denied the alternative motion for a new trial and entered judgment on the verdict for the plaintiff for $5,000. In reversing the judgment of this court the Supreme court said at pages 86 and 87 [of 376 Ill., at page 900 of 32 N.E.2d]:

“In this case, notwithstanding an alternative motion for a new trial was filed with the motion for judgment notwithstanding the verdict, to be passed upon by the trial court in case the motion for judgment was overruled, the trial court passed only upon the motion for judgment, sustaining the same. The alternative motion was undisposed of. The office of the Appellate Court is to review rulings, orders, or judgments of the court below, contained in the record, and matters not ruled upon by the inferior court are not subject to the consideration of the Appellate Court unless the lower court's failure to rule is made the subject of an assignment of error, in which case the propriety of such failure is the question presented to the Appellate Court and not the merits of the matter upon which the trial court refuses to act. In other words, the Appellate Court's jurisdiction is appellate, and extends only to those matters in controversy which have been ruled upon by the trial court. There is nothing in the Civil Practice Act which denies to a party the right to file an alternative motion. * * * The Appellate Court, in determining that plaintiff in error was not entitled to a new trial and in entering judgment on the verdict, was exercising original jurisdiction. It was not reviewing the decision of the nisi prius court. This, under our constitution, as we have seen, it had no jurisdiction to do, and the judgment entered for the defendant was erroneous. It necessarily follows that paragraph 3c of section 68, in 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. The Appellate Court should have remanded the cause to the trial court to pass upon the motion for a new trial.'

‘The Goodrich case is conclusive as to the proper procedure to be followed both by the Appellate Court and the trial court, where a judgment notwithstanding the verdict is reversed and an alternative motion for a new trial remains undisposed of in the trial court.

‘While it is true that the trial court overruled defendants' motion for a new trial, it did not do so in the exercise of its own jurisisdiction to pass upo such motion but rather because it misconstrued the judgment order and mandate of this court as a specific direction to deny the motion...