Spencer v. Chicago City Ry. Co.

• Decision Date: 16 April 1937
• Docket Number: No. 23061.,23061.
• Citation: 366 Ill. 120,7 N.E.2d 862
• Parties: SPENCER v. CHICAGO CITY RY. CO. et al.
• Court: Illinois Supreme Court

366 Ill. 120

7 N.E.2d 862

SPENCER

v.CHICAGO CITY RY. CO. et al.

No. 23061.

Supreme Court of Illinois.

April 16, 1937.

Error to First Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Joseph B. David, Judge.

Action by Lillian Marguerite Spencer, a minor, by her next friend, Richard Spencer, against the Chicago City Railway Company and others. A judgment for plaintiff was reversed by the Appellate Court (220 Ill.App. 436), and plaintiff brings error after reaching her majority.

Judgment of the Appellate Court reversed and cause remanded thereto, with directions.Crahen, Sullivan, O'Toole & Sullivan, of Chicago (Robert F. Kolb, of Chicago, of counsel), for plaintiff in error.

Brown, Fox & Blumberg, of Chicago (Frank L. Kriete and Charles Le Roy Brown, both of Chicago, of counsel), for defendant in error.

STONE, Justice.

Plaintiff in error sued out a writ of error to review the judgment of the Appellate Court for the First District (220 Ill.App. 436) entered January 28, 1921, reversing, without remanding, a judgment of the superior court of Cook county entered June 17, 1919, in the sum of $5,000, in an action brought by plaintiff in error by her next friend, against the defendants in error for injuries received through having been struck by defendants in error's street car. The injury complained of occurred on May 2, 1918, at which time plaintiff in error was approximately three years of age. The original action was brought by her father, Richard Spencer, as next friend.

Under section 117 of the Practice Act of 1907 (Smith-Hurd Ill.Stats. c. 110 appendix § 117), the time in which a review by the Appellate Court or this court may be had was extended to include a period of two years after a minor against whom judgment was rendered reached his or her majority. In this case, plaintiff in error attained her majority on May 3, 1933. This writ of error was sued out on April 9, 1935. Prior thereto, in 1929, a writ of error in cause No. 19765 was sued out of this court to review this judgment and was dismissed for failure to comply with the rules of court. On April 15, 1935, after the filing of the present writ of error, plaintiff in error filed her motion for leave to withdraw from the files of this court and refile in this cause a transcript of the record filed as a return to the writ of error sued out in 1929. This motion was denied. Plaintiff in error also filed an abstract of the proceeding in the cause, which defendants in error moved to strike. This motion was likewise denied. Defendants in error also filed an additional abstract of the record in the proceeding, including the record of the trial court, and have filed herein a motion to dismiss this writ of error for want of jurisdiction. This motion was taken with the case and presents for our consideration, as the first issue in the case, the question of jurisdiction of this court to hear the cause.

At the December, 1936, term, leave was granted to withdraw the record filed in this court in cause No. 19765, and to file the same in this proceeding. The cause therefore comes before us on the complete record and the motion of the defendants in error to dismiss the writ of error for want of jurisdiction.

Plaintiff in error's counsel say that a constitutional question is here involved and by it jurisdiction is conferred. The argument is, that by reason of the construction which the Appellate Court gave to section 120 of the Practice Act of 1907 (Smith-Hurd Ill.Stats. c. 110 appendix, § 119), the act is unconstitutional. Thus by the judgment of that court there came into existence for the first time in the suit a constitutional question. It is conceded by defendants in error that if a constitutional question exists, this court has jurisdiction of the cause even though the question first came into existence in the Appellate Court. Such is the rule in this state. Sixby v. Chicago City Railway, Co., 260 Ill. 478, 103 N.E. 249, Ann.Cas.1914D, 539. Defendants in error say, however, that no constitutional question concerning the validity of section 120 of the Practice Act of 1907 exists, for the reason that this court in Mirich v. T. J. Forschner Contracting Co., 312 Ill. 343, 143 N.E. 846, 33 A.L.R. 1, and by numerous decisions since, sustained the validity of that section. To this, plaintiff in error's counsel reply that the Mirich Case was not decided until 1924 while the Appellate Court's judgment in the case before us was entered in 1921; that when that judgment was entered the question of the constitutionality of section 120 of the Practice Act was debatable, and under section 11 of article 6 of the Constitution this court has jurisdiction to entertain this writ of error.

This question was definitely passed upon and settled by this court in Segal v. Chicago City Railway Co., 325 Ill. 43, 155 N.E. 757, 758. In that case a judgment for personal injuries secured by a minor, through his next friend, was, on December 2, 1919, reversed without remanding, with the finding of fact that the defendant was not guilty of negligence. On September 4, 1925, a writ of error was sued out of this court to review the judgment of the Appellate Court on the ground, among others, that the Appellate Court in reversing the judgment without remanding, deprived the plaintiff of his right of trial by jury, deprived him of his property without due process of law, and the judgment was void. A motion was filed in that case, as here, to dismiss the writ of error for want of jurisdiction, on the ground, among others, that this court in Mirich v. T. J. Forschner Contracting Co., supra, settled the question of the validity of section 120 of the Practice Act of 1907 and that other cases had followed the Mirich Case. It was said, however: ‘When the Appellate Court reversed the judgment without remanding the cause, the constitutionality of this section was a debatable question, and, the questions as to the validity of the statute and the construction of the Constitution, having arisen for the first time in the case in the Appellate...