Fanning v. Rogerson

Per Curiam : It is only the final judgments, orders and decrees of the Appellate Court that áre reviewable in this court. (Bev. Stat. sec. 91, chap. 110; sec. 8 chap. 37.) Judgments, orders and decrees of the Appellate Court are final, within the meaning of the statute, only when they are such as to put an end to the litigation by determining the rights of the parties therein. This may be done by affirming the judgment, order or decree of the court below, by rendering judgment or decree in the Appellate Court in proper cases, by reversing without remandment, or by reversing and remanding where the judgment or decree of that court is so far conclusive of the rights of the parties or such instructions are given that nothing remains to be done by the lower court but to carry into effect the judgment or mandate of the Appellate Court. (Railroad Co. v. Healy, 94 Ill. 416; Coalfield Co. v. Peck, 98 id. 139; International Bank v. Jenkins, 104 id. 143; Harzfeld v. Converse, 105 id. 534; Anderson v. Fruitt, 108 id. 378; Jones v. Fortune, 128 id. 518. It is not contended, however, that the writ of error will lie to bring up for review the judgment or order of the Appellate Court reversing the decree of the circuit court and remanding the cause. Counsel for plaintiffs in error expressly disavow any intention or right, as we understand them, to review that judgment; but it is insisted that the writ may be prosecuted to review the action of the Appellate Court had on the 3d of December, 1890, wherein it refused to vacate its judgment of reversal, and to dismiss the appeal to that court from the court below. The motion of the present plaintiffs in error (appellees in that court) for such order of vacation and dismissal was based upon the assumption that the record showed that a freehold was involved, and therefore the Appellate Court had no jurisdiction of the cause. It is manifest that, the making of the motion subsequently to the entry of the judgment can place the plaintiffs in error in no better position than if it had been interposed to the jurisdiction of the court at an early stage of the.case in that court. If that court, for that or any other reason, had no jurisdiction to determine the cause, it should at any stage of the case, on motion, or sua sponte have dismissed the appeal, and this would be entirely proper after judgment, while the court retained control of the record, by entry of a proper order vacating the judgment and dismissing the ease out of that court. But the refusal of the court to sustain the motion to dismiss the appeal, however well founded, was not a final order, judgment or -decree determining the rights of the parties in the cause, nor could it have the effect of rendering the order of reversal final. As said in Flanigen et al. v. City of East St. Louis, 131 Ill. 444: “Whether the Appellate Court had jurisdiction or not does not affect the question. The decision of that court can not be reviewed on appeal or writ of error, unless it has rendered such a judgment as is described in the statute,” — allowing the appeal or writ of error. (Sec. 91, chap. 110.) There it was insisted that a construction of a provision of the constitution was involved, and therefore the' Appellate Court was without jurisdiction. But the judgment of the circuit court having been reversed and the cause remanded for a new trial in the circuit court, it was held that the judgment of the Appellate Court was not final, and therefore not reviewable. So, here, the effect of the judgment of the Appellate Court was simply to send the cause back to the circuit court for answer, and trial upon the merits. It can no more affect the right to prosecute a writ of error that the court committed an error in regard to the matter insisted upon, than would the commission of any other error by the court. The right of appeal and to prosecute writs of error in this class of causes being regulated by statute, it is only in the cases presented by the statute that the judgments of the Appellate Court can be reviewed. The motion to dismiss the writ of error in this cause is sustained. Writ of error dismissed.