Zechman v. Zechman

• Decision Date: 19 November 1945
• Docket Number: No. 28678.,28678.
• Citation: Zechman v. Zechman, 391 Ill. 510, 63 N.E.2d 499 (Ill. 1945)
• Parties: ZECHMAN v. ZECHMAN.
• Court: Illinois Supreme Court

391 Ill. 510

63 N.E.2d 499

ZECHMAN

v.ZECHMAN.

No. 28678.

Supreme Court of Illinois.

Sept. 19, 1945.

Rehearing Denied Nov. 19, 1945.

Appeal from Second Division Appellate Court, First District, on Appeal from Superior Court, Cook County; Jos. A. Graber, Judge.

Suit by Sonia Zechman against Bernard B. Zechman for divorce, custody of a child, determination of property rights, and other relief. The superior court granted plaintiff a divorce and other relief, but plaintiff, being dissatisfied with certain parts of the decree, appealed therefrom to the Appellate Court, which affirmed the decree, 324 Ill.App. 528, 58 N.E.2d 254, and plaintiff appeals by leave of the Supreme Court.

Affirmed.

Milton J. Sabath, of Chicago, for appellant.

Samuel A. Rinella, of Chicago (Harry G. Fins, of Chicago, of counsel), for appellee.

SMITH, Justice.

This cause originated in a complaint for divorce filed by appellant in the superior court of Cook county. The complaint prayed for the dissolution of the marriage, custody of a minor child, the return of jewelry and other personal property, and the contents of a safety-deposit box. It was also alleged in the complaint that appellee had induced appellant to sign certain deeds conveying real estate owned by him through fraudulent representations made by him. It asked that said deeds be set aside; that appellee be ordered to pay alimony and solicitor's fees and for the support of the minor child, and that the property rights of appellant and appellee be determined and adjusted. Certain other parties were named as defendants in the complaint who, it was alleged, held property for appellee and belonging to him. The prayer of the complaint was that such parties be required to disclose and account for all such property held by them belonging to appellee.

Upon a hearing the court entered a decree granting to appellant a divorce. By the decree the court also awarded to her the custody of the minor child, subject to the right of visitation by appellee for two hours each Sunday afternoon. It was further ordered that appellee pay the sum of $12 per week for permanent alimony and for the support and maintenance of the child and $125 solicitor's fees. By the decree the court found that appellant was not entitled to any equity in any real estate or personal property owned by appellee.

An appeal was perfected by appellant to the Appellate Court, First District, from those parts of the decree concerning the custody of the child, the alimony and solicitor's fees allowed, and the finding that appellant was not entitled to any equity in any real estate or personal property owned by appellee.

A notice of cross appeal was filed by appellee from that part of the decree granting the divorce. This cross appeal seems, however, not to have been perfected by appellee, as it is not considered, and nowhere mentioned in the opinion of the Appellate Court. It is stated in the argument of appellant, and not denied by appellee, that the cross appeal was abandoned and not argued in the Appellate Court. We will so treat it. The Appellate Court affirmed the decree of the trial court. Upon petition of appellant, we granted leave to appeal to review that judgment.

At the threshold of the case we are met with the contention of appellee that this court has no jurisdiction to consider the appeal. This contention is based upon the argument that the case is an action ex contractu or one sounding in damages; that the amount of the decree was less than $1500, and that no certificate was issued by the Appellate Court, or a judge thereof in vacation, to the effect that there is fairly involved in the claim of appellant $1500 or more. If the case belongs to that class of cases in which the jurisdiction of this court is dependent upon the amount involved, jurisdiction could not be conferred by the certificate of the Appellate Court, or a judge thereof in vacation, that there is fairly involved in plaintiff's claim $1500 or more. This provision does not apply to cases in which the judgment is in favor of the plaintiff and, independent of all contingencies, is not for $1500 or more. In such cases the jurisdiction of this court can only be invoked upon an appeal allowed by the Appellate Court. Martin v. Estate of Martin, 377 Ill. 392, 36 N.E.2d 742. The decree in this case was for $12 per week alimony and $125 solicitor's fees. It was not, independent of all contingencies, for $1500 or more. Miles v. Miles, 200 Ill. 524, 66 N.E. 28.

The jurisdictional question raised presents for determination the question of whether the case is an action ex contractu or one sounding in damages, within the meaning of those terms as used in section 75 of the Civil Practice Act, Ill.Rev.Stat.1943, c. 110, s 199. Inasmuch as there is, obviously, considerable confusion as to the class of cases within the jurisdictional limitation imposed by said section, a clarification of the applicable rule would seem to be in order. By that section the jurisdiction of this court to review judgments of the Appellate Courts in actions ex contractu and in cases sounding in damages is limited to actions in which the judgment is for $1500 or more, cases, regardless of the amount involved, in which the Appellate Court shall issue a certificate of importance, and cases in which the judgment is against the plaintiff and there is issued by the Appellate Court, or one of the judges thereof in vacation, a certificate to the effect that there is fairly involved in the claim of the plaintiff $1500 or more. This and similar limitations on our jurisdiction originated in section 90, which was added to the Practice Act of 1872 by an act passed in 1877, Laws of 1877, p. 153. By that section the jurisdiction of this court in actions ex contractu and cases sounding in damages was limited to cases where the amount involved was $1000 or more. Such limitation was carried over into section 121 of the Practice Act of 1907, Laws of 1907, p. 468. Section 121 of the Practice Act of 1907 was amended in 1909, but the jurisdictional amount was not changed. Laws of 1909, p. 304. In 1929, that section was again amended and the jurisdictional amount increased to $1500. Laws of 1929, p. 578. The same limitation is now contained in section 75 of the Civil Practice Act, Ill.Rev.Stat.1943, chap. 110, par. 199.

It will thus be seen that continuously since 1877 the jurisdiction of this court to review judgments of the Appellate Courts in actions ex contractu and in cases sounding in damages has been limited to cases in which the jurisdictional amount is involved. The question as to what cases are included in the class in which the jurisdiction of this court was dependent upon the amount involved was first considered by this court in 1879, in Baber v. Pittsburgh, C. & St. L. R. Co., 93 Ill. 342. In that case, after declaring that section 90, which was added to the Practice Act in 1877, and section 8 of the Appellate Court Act of 1877 (Ill.Rev.Stat.1943, chap. 37, par. 32), were in pari materia and must be construed together, it was said:

‘The two classes thus carved out of the 90th section by the specific provisions of the 8th section are respectively characterized as ‘all cases finally determined in the Appellate courts in actions ex contractu,’ and ‘all cases sounding in damages.’ Neither of the expressions by which these two specific classes are distinguished is used in its technical sense. The term ex contractu, by which the first class is defined, is ordinarily applied to actions at law, as contradistinguished from suits in equity; but that the term is here used so as to include all suits and proceedings, both at law and in equity, for the enforcement of contracts where the claim or right sought to be enforced is susceptible of direct proof, can hardly admit of a doubt, when the several provisions of the statute bearing on the question are considered.

‘The use of the word ‘decree’ in connection with the two classes specified in the 8th section has an important bearing upon the question and would seem to be conclusive of it. The language of the statute is, that in all cases determined in said Appellate courts, in actions ex contractu, wherein the amount involved, etc., * * * and in all cases sounding in damages, wherein the judgment of the court below is less than $1000, exclusive of costs, etc., * * * the judgment, order or decree of the Appellate Court shall be final, etc. Now, it is manifest, that the word ‘decree’ is appropriate only to cases in chancery, and that there is nothing to which it can refer in the section except to the final determinations of the court, either in cases sounding in damages or in actions ex contractu; and of course it would more appropriately refer to the former, for there is nothing better settled than that a bill in chancery does not lie for the recovery of damages merely. To this rule there is not an exception. The word ‘decree’ must, therefore, refer to the determinations of the courts in actions ex contractu; and if so, the conclusion is irresistible that by the expression, actions ex contractu, as used in that connection, the legislature intended to include, subject to the qualifications we have mentioned, proceedings in chancery, as well as law, for the enforcement of rights arising out of contract. * * *

‘Inasmuch as the 90th section and the provisions of the 8th section, which relate to the specific classes therein provided for, have reference only to such legal proceedings as are instituted to recover either chattels or money, it follows that there is yet another class of cases which do not directly involve property rights, and, therefore, do not fall within either of the three classes above mentioned. This class of cases will include bills for divorce, actions of mandamus, and certain classes of bills for injunctions where they are not in effect brought to recover chattels or a money demand.

‘In all cases of this character, not directly involving...