Washington v. Louisville & N.R. Co.

• Decision Date: 24 January 1891
• Court: Illinois Supreme Court
• Parties: WASHINGTON v. LOUISVILLE & N. R. CO. et al.

136 Ill. 49

26 N.E. 653

WASHINGTON

v.LOUISVILLE & N. R. CO. et al.¹

Supreme Court of Illinois.

Jan. 24, 1891.

Appear from appellate court, fourth district.

M. Millard, for appellant.

J. M. Hamill and W. S. Forman, for appellees.

SHOPE, J.

This was an action by appellant, as administratrix of the estate of Oscar Washington, deceased, against appellees, to recover, for the benefit of the widow and next of kin, damages for wrongfully causing the death of her intestate. Judgment was rendered in her favor in the circuit court, as by agreement of parties upon the stipulation filed, for $200 and costs, from which judgment she appealed to the appellate court, where the judgment was affirmed, and she prosecuted this further appeal.

A motion was made in this court to dismiss the appeal for the reason that the judgment was for less than $1,000, exclusive of costs, and no certificate had been granted by the judges of the appellate court entitling the party to an appeal under the statute. This motion will be first considered. It is very clear that prior to the amendment of the eighth section of the appellate court act, in force July 1, 1887, (3 Starr & C. St. 430; Rev. St. 1889, c. 37, § 25,) no appeal could have been prosecuted to this court from the judgment of the appellate court in this case. The statute as amended, in addition to the cases in which appeals and writs of error had theretofore been allowed, provides ‘that, in all actions where there was no trial of and issue of fact in the lower court, appeals and writs of error shall lie from the appellate court to the supreme court, when the amount claimed in the pleadings exceeds one thousand dollars.’ Issues of fact are made up under our practice in courts of record by formal written pleadings of the parties. An issue, in this sense, is defined as a single, certain, and material point arising out of the allegations or pleadings of the parties, and generally made by an affirmative allegation and denial. Gould, pl. 279; And. Law Dict. Whenever the parties come to a point in the pleading which is affirmed on one side and denied on the other, they are said to be at issue. And, when a material fact is thus affirmed and denied, an issue of fact is formed for trial, and its determination usually results in a judgment for one party or the other. In this way only, as a general rule, can an issue of fact be formed for trial. It must be presumed that the legislature intended by the use of this language that appeals and writs of error should be allowed in the designated cases ‘where there has been no trial on an issue of fact’ in the lower court, presented and made up according to the known and established practice in making up issues of fact to be tried in the courts of this state. Upon looking into this record, it is found that the judgment below was not the result of a trial of an issue of fact. It was rendered by the court as by agreement of parties upon the stipulation filed, and the only question presented by this appeal is whether the court erred in so rendering its judgment. It was alleged in the declaration that the defendants were guilty of wrongful acts, thereby causing the death of plaintiff's intestate. The defendants filed pleas of the general issue, and thus was formed the issue of fact referred to, and intended to be covered by the proviso before quoted. It is not pretended that any trial was had of the issue of fact thus formed. It can make no difference in this respect that the court may have heard evidence in regard to the execution of the stipulation,for, when the court found that it had been executed, its action was based alone upon the agreement and consent therein contained. The damages claimed in the declaration exceed $1,000. We are of opinion that the case falls within the proviso, and the motion to dismiss must be overruled.

The suit was commenced in the city court of East St. Louis on the 26th day of March, 1888. The venue was subsequently changed to the circuit court of Madison county, where it was continued from term to term until the October term, 1889, of that court, when a motion was made by the defendants therein that judgment be entered for plaintiff and against defendants for the sum of $200 and costs, in accordance with an agreement filed, properly entitled, in the cause signed by the plaintiff, as administratrix of the estate of Oscar Washington, deceased, and in her individual capacity, and formally acknowledged by her before a notary public, and also duly signed by the defendants. The plaintiff, for herself as administratrix and widow, and in behalf of a minor child of the intestate and herself, objected to the entry of judgment upon said argument, for the reason, as she alleged, that its execution by her had been obtained by fraud and misrepresentation of fact, and that she was induced to sign the same by fraud, and under misapprehension of her rights, induced by false and fraudulent representation of one James, who pretended to be acting in her behalf and as her friend, when, in truth and in fact, he was acting for and in behalf of defendants. She filed her affidavit in support, setting out facts and circumstances tending to establish her contention. The defendants filed in opposition the affidavits of James, Dawson, and Krebs, each of whom were present at the making and execution of the agreement, and which tend to rebut the existence of fraud, deceit, or misrepresentation of fact, and to establish that the settlement and agreement was the result of a voluntary and deliberate purpose of the plaintiff, uninfluenced by any one, and formed with full knowledge of her rights. We shall not enter upon a discussion of the facts. If they were open for our consideration, it must be said there was ample evidence afforded by the affidavits filed, if the court...