Sprague v. Goodrich

• Decision Date: 02 April 1941
• Docket Number: No. 25762.,25762.
• Parties: SPRAGUE v. GOODRICH.
• Court: Illinois Supreme Court

376 Ill. 80

32 N.E.2d 897

SPRAGUE

v.GOODRICH.^*

No. 25762.

Supreme Court of Illinois.

Feb. 14, 1941.

As Modified on Denial of Rehearing April 2, 1941.

Error to Third Division Appellate Court, First District, on Appeal from Circuit Court, Cook County; William J. Wimbiscus, Judge.

Action by Wallace J. Goodrich, administrator of the estate of Frances Goodrich, deceased, against A. A. Sprague, receiver for the Chicago, North Shore & Milwaukee Railroad Company, to recover damages for the wrongful death of the deceased. Judgment for defendant notwithstanding a verdict for plaintiff was reversed by the Appellate Court and judgment entered for plaintiff, 304 Ill.App. 556, 26 N.E.2d 884, and defendant brings error.

Judgment of the Appellate Court reversed and the cause remanded with directions.

FARTHING, J., dissenting.Gardner, Foote, Morrow & Merrick, of Chicago (Walter M. Fowler, of Chicago, of counsel), for plaintiff in error.

Topliff, Horween & Merrick, of Chicago, for defendant in error.

STONE, Justice.

Judgment against the plaintiff in error, as receiver, for $5,000, in favor of the defendant in error, as administrator, was entered in the Appellate Court for the First District on appeal by defendant in error from the judgment of the circuit court entered on motion of plaintiff in error for judgment non obstante veredicto. Plaintiff in error has sued out a writ of error on the ground that the act which purports to give the Appellate Court power to enter the judgment here complained of is unconstitutional, and that, as the question arose for the first time in the Appellate Court, this court has jurisdiction of the writ of error.

The case arose on a complaint by defendant in error, as administrator, for damages arising from the death of Frances Goodrich, a girl of eleven years, who was killed by one of the plaintiff in error receiver's electric trains while riding her bicycle on Woodlawn avenue in the village of Glencoe. The usual allegations of negligence were included in the complaint, both as to the operation of the train and the condition of the right-of-way of the railroad. The complaint specifically alleged that the statutes of Illinois, requiring every railroad to remove from its right-of-way at all grade crossings, all brush, shrubbery and trees for a distance of not less than 500 feet from the grade crossing, had been violated. An answer was filed denying the allegations of fact upon which liability was claimed, denying the applicability of the statute to electric railroads, and charging contributory negligence on the part of the deceased. Trial was had and a verdict was returned infavor of defendant in error, as we have indicated.

Plaintiff in error's counsel filed a motion for judgment notwithstanding the verdict and an alternative motion for a new trial. The former motion was allowed and judgment for the defendant was entered. The alternative motion was not considered. The Appellate Court, on appeal, reversed the judgment of the trial court, passed upon and denied the alternative motion for a new trial, and entered judgment for the plaintiff in the case.

Plaintiff in error urges, here, that the Appellate Court was without jurisdiction under the constitution to reverse the judgment of the trial court in this case, without remanding the cause for disposition of the motion for a new trial; that it was without jurisdiction to consider the motion for a new trial or enter a judgment on it, and that paragraph 3c of section 68 of the Civil Practice act, Ill.Rev.Stat.1939, chap. 110, par. 192, under which the Appellate Court acted, is invalid, as attempting to confer on the Appellate Court jurisdiction denied it by the constitution.

It is argued here by defendant in error that there is no substantial or fairly debatable constitutional question in the case; that plaintiff in error having taken advantage of the provision of the statute permitting motions for judgment notwithstanding the verdict, is not in a position to attack it when it operates adversely to it; that the Appellate Court, as a court of review, has authority under the common law to pass upon motions for a new trial and that such action was in exercise of its appellate jurisdiction.

The question as to the validity of the provision of section 68 of the Civil Practice act referred to, was raised for the first time in the Appellate Court. The rule is that where the constitutionality of an act, affecting the jurisdiction of the Appellate Court, is first questioned in that court, it has authority to pass upon the validity of the act. Corcoran v. City of Chicago, 373 Ill. 567, 27 N.E.2d 451;Bagdonas v. Liberty Land & Investment Co. 309 Ill. 103, 140 N.E. 49. The jurisdiction of this court to review judgments of the Appellate Court affecting the validity of a statute, where the question is first raised in that court, is provided by the constitution, and not by the Practice act. Bagdonas v. Liberty Land & Investment Co. supra.

Section 11 of article 6 of the constitution, Smith-Hurd Stats., provides for the creation of inferior Appellate Courts of uniform jurisdiction, upon which jurisdiction may be conferred, and from which appeals and writs of error shall lie to this court in all criminal cases, and in cases in which a franchise or freehold or the validity of a statute is involved, and in such other cases as may be provided by law. Sub-paragraph 2 of section 75 of the Civil Practice act, Ill.Rev.Stat.1939, chap. 110, par. 199, p. 2433, provides for review by this court of judgments of the Appellate Court in certain cases but excepts those cases wherein appeals are specifically required by the constitution to be allowed from the Appellate Court to this court. This provision is substantially the same as section 121 of the Practice act of 1907, Smith-Hurd Stats. c. 110 Appendix, § 120, the difference being that the earlier act referred to appeals and writs of error, while the present act omits the term ‘writs of error.’ Under the 1907 act it was held that the method of review by appeal had been provided in cases where the validity of a statute was first raised in the Appellate Court but that the constitutional question could be reviewed by this court on a common law writ of error. Sixby v. Chicago City Railway Co. 260 Ill. 478, 103 N.E. 249, Ann.Cas.1914D, 539. The omission of the words ‘and writs of error’ in the Civil Practice act, does not change the rule prevailing prior to its adoption. The right of review of constitutional questions first arising in the Appellate Court is still available by writ of error. Corcoran v. City of Chicago, supra; Burket v. Reliance Bank & Trust Co., 366 Ill. 98, 7 N.E.2d 850;Spencer v. Chicago City Railway Co. 366 Ill. 120, 7 N.E.2d 862.

In the case before us the question of the validity of paragraph 3c of section 68 first arose when the Appellate Court reversed the judgment of the circuit court, passed upon the motion for a new trial and entered judgment for defendant in error upon the verdict of the jury. The question, therefore, is presented on the contention of plaintiff in error that the power and authority given to the Appellate Court by paragraph 3c of section 68 of the Civil Practice act to so act, violates rights guaranteed by the State and Federal constitutions. Paragraph 3c of section 68 of the Civil Practice act reads as follows: ‘If the party in whose favor the verdict of the jury was rendered shall assign error in the Appellate or Supreme Court upon the order of the trial court entering judgment notwithstanding the verdict, and the Appellate or Supreme Court shall be of opinion that the trial court committed error in ordering or entering judgment notwithstanding the verdict, such court shall reverse such order and judgment and shall order or enter judgment in accordance with the verdict of the jury, unless it shall appear that there was error in the case that would have entitled the party in whose favor judgment notwithstanding the verdict was entered, to a new trial if such judgment had not been entered by the trial court, in which case a new trial shall be ordered.’ Ill.Rev.Stat.1939, chap. 110, par. 192, p. 2428.

Plaintiff in error argues that this section of the Civil Practice act attempts to confer original jurisdiction upon the Appellate Court to pass upon a motion for a new trial and to enter judgment; that the Appellate Court does not have, and the General Assembly is powerless to confer upon it, original jurisdiction. Such is the long-settled rule in this State. In People v. Hoyne, 262 Ill. 82, 104 N.E. 255, a general demurrer to a petition for mandamus was sustained by the circuit court and relator abiding his petition, final judgment was entered against him denying the writ. On appeal, the Appellate Court reversed the judgment and remanded the cause. By stipulation of the parties the Appellate Court set aside its judgment, overruled the demurrer and entered final judgment awarding a peremptory writ of mandamus commanding the State's attorney to file an information in accordance with the prayer of the...