Carlin v. City of Chicago , 1913 Ill. App. LEXIS 1142 ( 1913 )

Mr. Justice Baker

delivered the opinion of the court.

The question presented by the demurrer to the plea of the statute of limitations was one of law, viz: Whether the counts of the amended declaration introduced another and different cause of. action from that set up in those counts as originally filed. That question of law is to be determined by an inspection of the original and amended declarations.

In Gilmore v. City of Chicago, 224 Ill. 490, aff’g 125 Ill. App. 13, the negligence alleged in the original declaration and in an amended count filed within one year after the accident, was that the city negligently, etc., suffered a sidewalk on the “north side of 38th street at and near the intersection of 38th street with Princeton avenue and between Princeton and Shields avenues, etc.,” to be and remain in bad and unsafe condition, whereby, etc. Four years after the accident the plaintiff by leave of court amended the original declaration and the additional count by striking out the words “Princeton avenue” wherever the same therein occurred, and inserting in lieu thereof the words “Stewart avenue.” The defendant pleaded the statute of limitations and the court held that a cause of action was stated by the amended count other and different from that stated in the original and amended count; that the averment as to the place where the sidewalk was out of repair was material, and that an amended declaration, filed more than two years after his injury, which alleged that the sidewalk was out of repair at a different place than was averred in the original declaration, was subject to the plea of the statute of limitations. In the opinion of Mr. Chief Justice Scott in the Supreme Court and of Mr. Justice Brown in this court, the authorities are cited and examined and the case distinguished from Chicago City R. Co. v. McMeen, 206. Ill. 108, on which plaintiff in error relies in this case.

I am unable to perceive any ground on which it can be held that neglect to keep a sidewalk in repair at one place is not the same wrong as neglect to keep a sidewalk in repair at another place, and that neglect to keep one street free from a dangerous article or thing is the same wrong as neglect to keep another and different street free from such dangerous article or thing, and am therefore of the opinion that the demurrer of the plaintiff to the plea of the statute of limitations was properly overruled, and that the judgment should be affirmed.

The contention of plaintiff in error that because the defendant took no exception to the order of November 6, 1908, sustaining the demurrer to the plea of the statute of limitations, the order of March 14, 1910, vacating said order and overruling the demurrer was void, is without merit. The office of an exception at law is to preserve for review rulings of the trial court other than those appearing on the face of the common law record, and no exception is necessary or even proper when a demurrer is either overruled or sustained. Such an order does not pass beyond the control of the court with the close of the term, but the court has the power, and it is its duty when convinced that an erroneous ruling has been -made with reference to the sufficiency of a pleading or other like matter, to set aside the order and correct the error; and the fact that the first order was made by another judge is of no consequence whatever. Fort Dearborn Lodge v. Klein, 115 Ill. 177.

Mr. Justice Brown specially concurring: I concur in the decision of this cause with much doubt and some hesitation. Fully adhering to the doctrine declared by this court in City of Chicago v. Gilmore, 125 Ill. App. 13, and approved by the Supreme Court in the same case, 224 Ill. 490, I feel great doubt whether this case cannot be and should not be distinguished from it.

In determining to concur with Judge Baker in the affirmance of the judgment, I am mindful of the fact that if this cause should now reach the Supreme Court, the question presented by the present record will be soon finally settled, but that if the judgment should be reversed it would remain in the cause even after a trial below, possibly long, expensive and laborious, and very probably might still be brought to the ultimate tribunal.

The judgment of the Superior Court is affirmed.

Affirmed.

Me. Presiding Justice Smith dissenting.