Reiter v. Illinois Nat. Cas. Co.

• Decision Date: 22 May 1947
• Docket Number: 29662,Nos. 29660,29664,29668.,s. 29660
• Citation: 73 N.E.2d 412,397 Ill. 141
• Parties: REITER v. ILLINOIS NAT. CASUALTY CO. et al.
• Court: Illinois Supreme Court

397 Ill. 141

73 N.E.2d 412

REITER

v.ILLINOIS NAT. CASUALTY CO. et al.

Nos. 29660, 29662, 29664, 29668.

Supreme Court of Illinois.

May 22, 1947.

Appeal from First Division, Appellate Court, First District, on Appeal from Surerior Court, Cook County; Donald S. McKinlay, Judge.

Suit by T. H. Reiter against the Illinois National Casualty Company and others for an accounting and return to plaintiff of certain stock in the named defendant, allegedly taken from plaintiff by duress and coercion of the other defendants. From a decree of dismissal, the plaintiff appealed to the Appellate Court for the First District. From a judgment of the Appellate Court, 328 Ill.App. 234,65 N.E. 830, affirming the decree as to the Fidelity Deposit Company of Maryland and reversing and remanding with directions as to the other defendants, the other defendants appeal.

Judgment of Appellate Court reversed and superior court affirmed as to Ernest Palmer, and judgment of Appellate Court reversed and cause remanded as to the other appellants.

Heineke & Conklin, of Chicago (Paul H. Heineke, of Chicago, of counsel), for appellant Illinois Nat. Casualty Co.

Vogel & Bunge, of Chicago, for appellant Claude H. Barr.

A. M. Fitzgerald, of Springfield, pro se.

George F. Barrett, Atty. Gen., and Winston, Strawn & Shaw and John D. Black, all of Chicago (William C. Wines, Gerard E. Grashorn, and Edward J. Wondrow, all of Chicago, of counsel), for appellant Ernest Palmer.

Joseph A. Londrigan, of Springfield, for appellant Arthur M. Fitzgerald, on rehearing.

John A. Brown, of Chicago, for appellee.

PER CURIAM.

This case originated in a suit filed by appellee, Reiter, in the superior court of Cook county. It involves only one decree. The superior court, on motion of the defendants at the close of the plaintiff's evidence, entered a decree dismissing the complaint for want of equity. On appeal to the Appellate Court for the First District that court affirmed the decree as to the defendant Fidelity and Deposit Company of Maryland, and as to all of the other defendants the Appellate Court reversed the decree and remanded the cause with directions to enter a decree for the plaintiff, in accordance with the prayer of his complaint. From the judgment of the Appellate Court the Illinois National Casualty Company, Claude H. Barr, Arthur M. Fitzgerald and Ernest Palmer, upon leave granted by this court, have perfected separate appeals. These separate appeals have all been consolidated in this court.

The suit is one for accounting and return to appellee of certain stock of the Illinois National Casualty Company claimed to have been taken from him by duress and coercion by the defendants Barr, Fitzgerald and Palmer. The cause was referred to a master. At the close of the plaintiff's evidence each defendant moved for a finding in his or its favor. The master reported, making certain findings of fact, and recommended the allowance of the motions and the dismissal of plaintiff's complaint. The trial court approved the master's report, allowed the several motions of said defendants, and dismissed plaintiff's complaint for want of equity. The facts fully appear in the opinion of the Appellate Court for the First District, 328 Ill.App. 234, 65 N.E.2d 830, but for reasons made apparent here-after are not discussed.

In the course of its opinion the Appellate Court held that the defendants' motions had the effect of submitting the cause on the plaintiff's evidence alone; and further held that as the decision was favorable to defendants in the trial court on the motions to dismiss, the defendants would not be permitted to offer testimony when such decision was reversed on appeal, and accordingly, as to appellants, Barr, Fitzgerald, Palmer and Illinois National Casualty Company the cause was remanded with directions to enter a decree in accordance with the views expressed.

Appellants have raised a procedural question, which must be disposed of in the consideration of the case in view of this holding. The effect of the judgment of the Appellate Court was to direct the trial court to enter a decree in favor of the plaintiff on the evidence taken, without giving to the defendants an opportunity to offer evidence in support of their defense. A final judgment has been entered by the Appellate Court, authorizing us to take jurisdiction for the purpose of determining the correctness of the decision based upon the evidence. Whether this remanding order was correct depends upon a proper construction of paragraph (4) of section 64 of the Civil Practice Act. Ill.Rev.Stat.1945, chap. 110, par. 188.

Prior to 1941, paragraph (4) of section 64 was not in the statute, and the rule in equity cases was that a defendant moving for a decree in his favor, at the close of plaintiff's evidence, submitted the cause to the chancellor for decision upon the merits, and thereby waived the right to offer evidence in support of his defense. Fewkes v. Borah, 376 Ill. 596, 35 N.E.2d 69;Magnolia Petroleum Co. v. West, 374 Ill. 516, 30 N.E.2d 24, 136 A.L.R. 372;Koebel v. Doyle, 256 Ill. 610, 100 N.E. 154. In 1941 the legislature amended section 64 of the Civil Practice Act by adding thereto paragraph (4), which reads as follows: ‘Upon the trial of a proceeding in equity, defendant may, at the close of plaintiff's case, move for a finding in his favor or move to dismiss the suit for want of equity. Either motion shall constitute a submission of the cause for decision on the merits. If the decision on the motion is adverse to the defendant he may proceed to adduce evidence in support of his defense, in which event the motion to dismiss or for a finding shall be deemed to have been waived and withdrawn.’

The part of the section preceding the last sentence is declaratory of the law and practice up to the time of its enactment, and such motion, since Koebel v. Doyle, 256 Ill. 610, 100 N.E. 154, has constituted a submission of the cause as fully and as effectively as a cause at law is submitted to a jury when the defendant makes the motion to exclude the plaintiff's evidence, which motion is denied, and elects to offer no evidence. The question to be decided is the effect of the last sentence therein: ‘If the decision on the motion is adverse to the defendant,’ etc. This gives defendant the right, if he chooses, to offer evidence as he would in a suit at law if he made a like motion and it was denied.

From this language it appears that in the trial of a cause the same rights are now given in cases at law and in equity, where the defendant makes a motion to exclude plaintiff's evidence, or to find in favor of the defendant. In both law and equity the defendant may make a motion to dismiss, or the equivalent of a motion to exclude. In both law and equity if the motion is allowed the case is decided in favor of defendant. On each side of the court if the motion is denied, and the defendant elects to offer no evidence, the decision is made upon the plaintiff's evidence. In both law and equity, if the defendant elects, he may offer evidence if his motion is denied. There seems to be no dispute or contention thus far between the parties as to this being the proper construction in the trial court. But, suppose the trial court erroneously allows the motion of the defendant and the plaintiff appeals, and the Appellate Court decides that the motion to exclude or to dismiss for want of equity should not have been allowed. The question then arises, what effect did the General Assembly intend the amendment to section 64 to have upon the disposition of the case? Was the statute intended to simply control trial practice, or was it for the purpose of making the practice in law and equity more nearly the same, and eliminate distinctions which had not already been abolished by the provision that there should be no distinctions in pleading between actions in law and in equity? Civil Practice Act, see. 31.

Section 74 of the Civil Practice Act provides for review by the Appellate or Supreme Court, and ‘such review shall be designated an appeal and shall constitute a continuation of the proceeding in the court below.’ This section expressly provides that the appeal provided therein is not a new suit. Possibly this provision was made because in some jurisdictions an appeal is sometimes regarded the same as a writ of error, viz., the bringing of a new suit. 2 Am.Jur. sec. 4, p. 845; 2 Ency. Pl. & Pr. pp. 26-30. Section 74, however, beyonddoubt brings before the appellate tribunal all of the rulings and decisions of the trial court, not as a new case but as a continuation of the same case. Every act of such trial court in reviewed, and, if it is in error, it is required by directions of such appellate tribunal to do what it should have done upon a hearing. There is nothing in paragraph (4) of section 64 of the Civil Practice Act which requires the Appellate Court to correct only those errors other than the error in allowing the motion of the defendant to exclude the testimony.

If an appeal is a continuation of the case heard in the trial court it is simply the same case in a different court. If in the trial court the defendant has a right to offer evidence in case his motion to exclude is denied, the statute does not require that the defendant be denied this right in the Appellate Court, when, for the first time, the motion of the defendant to exclude the evidence in the same case has been denied. The statute says: ‘If the decision on the motion is adverse,’ etc. It is not confined to a decision adverse to the defendant in the trial court, but to the adverse decision of the court having the power to make the decision in the case. If the Appellate Court disagrees with the trial court, the decision of the Appellate Court is the decision in the case, and not the decision of a different case, as appellee interprets the act. The decision of the trial court no longer exists, and the only decision in the case is adverse to defen...