Ptacek v. Coleman

• Decision Date: 10 December 1936
• Docket Number: Gen. No. 23282
• Citation: 5 N.E.2d 467,364 Ill. 618
• Parties: PTACEK v. COLEMAN et al.
• Court: Illinois Supreme Court

364 Ill. 618

5 N.E.2d 467

PTACEK

v.COLEMAN et al.

Gen. No. 23282

Supreme Court of Illinois.

Dec. 10, 1936.

Action by Edward Ptacek against H. J. Coleman and other. From a judgment of the Appellate Court, 279 Ill.App. 639, affirming judgment of nonsuit on plaintiff's motion, the defendants appeal.

Affirmed.Appeal from First Branch Appellate Court, First District, on Appeal from Municipal Court of Chicago; John J. Rooney, Judge.

Harry A. Biossot, of Chicago, for appellants.

Rudolph B. Salmon, of Chicago (Hiram T. Gilbert, of Chicago, of counsel), for appellee.

JONES, Justice.

Edward Ptacek brought an action in the municipal court of Chicago against H. J. Coleman, H. J. Clark, and M. J. Moran to recover $5,779.37 under a repurchase agreement. Issues were joined by Coleman and Clark. The cause was heard upon a stipulation of facts and argued by counsel. After a continuance plaintiff orally moved the court for a nonsuit. Defendants objected for the reason that the cause had been heard and submitted for decision and because no special motion had been filed setting up the grounds for the dismissal, supported by affidavit. The objection was overruled and a nonsuit was entered at plaintiff's cost. Upon an appeal by Coleman and Clark to the Appellate Court for the First District the judgment of the trial court was affirmed. They bring the cause here by leave to appeal.

The only question for our consideration is whether the right to voluntarily dismiss an action in the municipal court is governed by section 52 of the Civil Practice Act (110 S.H.A. § 176) or by the rules prescribed by the municipal court pursuant to the provisions of the Municipal Court Act of 1905, as amended, 37 S.H.A. § 356 et seq. Rule 122 of the municipal court provides for the voluntary discontinuance of an action by notice in writing or in open court, before, at, or after the hearing or trial, upon such terms as to costs and as to any other action as may be just. Section 52 of the Civil Practice Act (110 S.H.A. § 176, Ill.Rev.Stat.1935, c. 110, par. 180) provides that the plaintiff may dismiss his action before the trial or hearing begins, upon notice to the defendant and payment of costs, and that thereafter he may dismiss only upon stipulation, or upon the order of the court or judge made on special motion, in which the ground for dismissed shall be set forth and which shall be supported by affidavit.

The parties agree that the provisions of section 52 of the Civil Practic Act were not complied with, and that if that section applies to actions in the municipal court the nonsuit was improperly entered. Appellants claim that those sections of the Municipal Court Act under which the rule was adopted were repealed by the Civil Practice Act, and that section 52 governs voluntary nonsuits in a municipal court as well as in all other courts of record. Appellee claims that the Civil Practice Act does not affect the provisions of the Municipal Court Act giving that court the right to prescribe the practice therein. A determination of that issue necessitates a consideration of the terms of section 34 of article 4 of the Constitution, the applicable provisions of the two acts and the history of the legislation upon the subject.

Section 34 of article 4 of the Constitution was adopted by way of amendment in 1904. It provides that the General Assembly shall have power, subject to the conditions and limitations therein contained, to pass any law (local, special, or general,) providing a scheme or charter of local municipal government for the city of Chicago; that in case a municipal court shall be created, its jurisdiction and practice shall be such as the General Assembly shall prescribe; that the General deem requisite all laws which it may deem requisite to effectually provide a complete system of local government for the city, and that no law based upon that amendment, nor any local or special law based thereon affecting specially any part of the city, shall take effect until ratified by referendum. The municipal court was thereafter established. Thirty sections of the Municipal Court Act relate to practice. Section 19 (as amended, 37 S.H.A. § 374) provides: ‘That until otherwise determined in the manner hereinafter provided, and except as by this act is otherwise prescribed, the practice in the Municipal Court shall be the same, as near as may be, as that which may from time to time be prescribed by law for similar suits or proceedings in circuit courts. * * * Said Municipal Court shall be the sole judge of the applicability to the proceedings of said court of the rules of practice prescribed by law for similar cases in the circuit courts and its decisions in respect thereto shall not be subject to review upon appeal or writ of error.’ Section 20 as amended in 1931 (37 S.H.A. § 375) provides: ‘That the judges of said municipal court shall have power to adopt, in addition to or in lieu of the provisions herein contained prescribing the practice in said municipal court, or of any portion or portions of said provisions, such rules regulating the practice in said court as they may deem necessary or expedient for the proper administration of justice in said court. * * * Amendments and changes of said rules may be made from time to time by like orders.’ Prior to the amendment of 1931, section 20 (Laws 1905, p. 157 as amended by Laws 1907, p. 225, § 1) carried the proviso that no such rule should be inconsistent with those expressly provided for by the act, and that the Supreme Court might, in its discretion, substitute other rules and make any order respecting the rules as it deemed proper.

Section 1 of the Civil Practice Act (110 S.H.A. § 125) is as follows: ‘The provisions of this Act shall apply to all civil proceedings, both at law and in equity, unless their application is otherwise herein expressly limited, in courts of record, except in attachment, ejectment, * * * or other actions in which the procedure is regulated by special statute.’ Subsection2 of section 31, 110 S.H.A. § 155 (2) provides: ‘Proceedings in attachment, ejectment, * * * or other actions in which the procedure is regulated by special statutes, shall be in accordance with the statutes dealing therewith.’ Rule 2 of this court (110 S.H.A. § 259.2) provides that in the actions referred to by those sections of the Civil Practice Act the separate statutes shall control to the extent to which they regulate procedure in such actions, but the Civil Practice Act shall apply to matters of procedure not so regulated by separate statutes.

The Civil Practice Act was not submitted to any referendum. It is apparent that if it supplants the practice provisions of the Municipal Court Act it must be by way of amendment, express or implied. The Municipal Court Act is local and special, and any act amending it is necessarily local and special. Both the original and the amendatory acts are based upon the constitutional amendment, because without it no special law regulating the municipal court could be passed. Therefore no amendment of the Municipal Court Act can take effect without a ratification by referendum. The rule that a special act may be repealed by implication by a later general act has no application where the Constitution prohibits any amendment except through a referendum and where the effect of such repeal is to amend the special act by substituting the provisions of the general act, otherwise the constitutional could be nullified. The constitutional requirement for the consent of the legal voters does not depend upon whether the law is general or special. It is applicable to any law, general, local, or special, based upon the amendment and which affects the municipal government of the city of Chicago. People v. City of Chicago, 310 Ill. 534, 142 N.E. 161.

In David v. Commercial Mutual Accident Co., 243 Ill. 43, 90 N.E. 285, in speaking of the general rule that a later statute operates as a repeal of a former inconsistent act, it is said that under that rule it might well be held that section 100 of the Practice Act (Laws 1907, p. 443 as amended by Laws 1907-08 p. 94, § 1) repeals section 22 of the Municipal Court Act (Laws 1905, p. 167 as amended by Laws 1907, p. 236) in so far as they are inconsistent. In that case the question of practice in the municipal court was not at issue but related to practice in the Appellate Court upon an appeal from the municipal court, and we held that under the constitutional amendment of 1904 the power to provide special procedure for the municipal court does not extend to practice and procedure in other courts. The expression referred to was not necessary to a decision of the issue in that case and is not to be regarded as holding that laws regulating the practice in the municipal court may be amended by general or special acts without a referendum. The obvious purpose, as specifically expressed in the constitutional amendment, was to provide for special or local as well as general legislation for a local municipal government, unaffected by the provisions of section 29 of article 6, which requires all laws relating to courts to be general and of uniform operation. It is axiomatic that constitutional provisions may not be abrogated by the Legislature nor in any other way than by changing the Constitution itself.

The Municipal Court Act is a special law; the Civil Practice Act...