Wilbor v. Ewen

Mr. Justice Craig delivered the opinion of the court: By section 90 of the Practice act (Hurd’s Stat. 1897, p. 1218,) it is provided: “The Supreme Court shall reexamine cases brought to it by appeal or writ of error as to questions of law only, and no assignment of error shall be allowed which shall call in question the determination of the inferior or appellate courts upon controverted questions of fact in any case,” — with certain exceptions. The case presented by this record does not fall within any of the exceptions to that act. By section 88 of the same act it is provided: “If any final determination of .any cause * * * shall be made by the Appellate Court as the result, wholly or in part, of the finding of the facts concerning the matter in controversy different from the finding of the court from which such cause was brought by appeal or writ of error, it shall be the duty of such Appellate Court to recite in its final order, judgment or decree the facts as found, and the judgment of the Appellate Court shall be final and conclusive as to all matters of fact in controversy in such, cause.” In the judgment of the Appellate Court it 'is recited that the judgment of the circuit court of Cook county “be reversed, annulled, set aside and wholly for nothing esteemed, the said error being that the said circuit court refused to instruct the jury to find for the appellant, as requested by the said appellant.” It will be observed that the Appellate Court reversed the judgment of the circuit court but did not remand the cause. It will also be noticed that the Appellate Court did not find the facts and recite in its final judgment the facts as found. In the Appellate Court numerous errors were assigned, among others, that the circuit court erred in the admission and exclusion of evidence; also in giving and refusing' instructions. But the judgment of the circuit court was not reversed on the alleged errors in the admission or exclusion of evidence, or the giving or refusing of instructions, or any other error assigned on the record, (except as to the instruction to find for the defendant, which will be considered hereafter,) because if the reversal had been upon these grounds it would have been the duty of the Appellate Court to remand the cause to the circuit court for another trial, where the errors might have been corrected, as held in Post v. Union Nat. Bank, 159 Ill. 421, Siddall v. Jansen, 143 id. 537, Hately v. Pike, 162 id. 241, and Scovill v. Miller, 140 id. 504, and a refusal to remand, in such case, would have been error. When the Appellate Court fails to make a finding of facts and incorporate such finding in its final judgment, as was the case here, it will be presumed that the court found the facts the same way as the circuit court, which would necessarily lead to an affirmance of the judgment, (Centennial Nat. Bank v. Farrell, 166 Ill. 513,) and a refusal to affirm, in such pase, would be error. The Appellate Court, however, bases its judgment of reversal on the ground, as appears from the recitation found in its judgment, that the circuit court erred in refusing an instruction to find for the defendant. If the evidence introduced on the trial in the circuit court, With all proper inferences to be drawn therefrom, fairly tended to prove plaintiff’s cause of action, the circuit court did not err in refusing to give the instruction to find for the defendant. Upon looking into the record, which is proper to be done in a question of this character, it will be found there is ample evidence tending to prove plaintiff’s cause of action. Moreover, the circuit court found that the evidence sustained plaintiff’s cause of action, and as the Appellate Court failed to find the facts differently and incorporate such finding in its final judgment, that court necessarily found the facts the same way as the circuit court, and hence its judgment holding that the circuit court erred in refusing the instruction to find for the defendant was inconsistent with the facts as it had found them, and erroneous. From what has been said it is apparent that the judgment of the Appellate Court will have to be reversed and the cause remanded to that court for further consideration. If, when the case again comes before that court, the facts are held by the Appellate Court to be different from the facts as found in the circuit court, that court may predicate its judgment upon such different finding, and the facts so found must be recited in its judgment. If the facts be found by the Appellate Court in accord with the finding in the circuit court the judgment of the circuit court should be affirmed, unless the court, upon consideration of the errors assigned in regard to the ruling- of the circuit court in the admission and exclusion of evidence and in the giving and refusing of instructions, should find substantial error, when, of course, the judgment should be reversed and the cause remanded for another trial. The judgment of the Appellate Court will be reversed and the cause remanded to that court. Reversed and remanded.