Barber v. Estate of Keiser

Mr. Justice Cooke delivered the opinion of the court: P. A. Barber, the plaintiff in error, filed a claim in the county court oPMacoupin county against the estate of Co-bus J. Keiser, deceased. The claim was founded upon a judgment rendered by the district court at San Antonio, Texas, against defendants in error, as executors of the last will and testament of Cobus J. Keiser. Plaintiff in error failed to secure an allowance of the claim in the county court and an appeal was taken to the circuit court of Macoupin county. Trial was had in the circuit court and judgment was rendered in favor of defendants in error and against plaintiff in error for costs. .Upon appeal to the Appellate Court for the Third District the judgment of the circuit court was affirmed, and the record has been brought here for review by writ of certiorari. Section 121 of the Practice act provides that in cases wherein the judgment of the Appellate Court is made final this court may require, by certiorari or otherwise, such cases to be certified to this court for its review and determination, with the same power and authority and with like effect as if such cases had been brought up for review by appeal or writ of error, “Provided, however, that in actions ex contractu (exclusive of actions involving a penalty) and in all cases sounding in damages the judgment, exclusive of costs shall be more than $1000.” Neither of the expressions “actions ex contractu” and “all cases sounding in damages” is used in its technical sense. The term “ex contractu” is ordinarily applied to actions at law as distinguished from suits in equity, but the term is here used to include all suits and proceedings, both at law and in equity, for the enforcement of contracts where the measure of recovery is fixed or made approximately certain by some rule of law. (Baber v. Pittsburg, Cincinnati and St. Louis Railroad Co. 93 Ill. 342.) That term as here used has reference to the nature of the cause of action rather than to the form of the proceeding to enforce it. Umlauf v. Umlauf, 103 Ill. 651. The question of the jurisdiction of this court was not raised at the time the petition for certiorari was presented. It is clear that we have no jurisdiction. This is' an action ex contractu within the sense that term is employed in the Practice act, and as the judgment was against plaintiff in error for costs the judgment of the Appellate Court is final. The writ of error is dismissed. ■ Writ of error dismissed.