The People v. Circuit Court

With due deference to the majority opinion, it seems clear to me that this court does not have jurisdiction to entertain this original application for a writ of prohibition. It is, of course, conceded in the majority opinion that this court has no original jurisdiction to issue writs of prohibition and that it can issue such writs only in aid of its appellate jurisdiction. (People v. Circuit Court, 169 Ill. 201, and 173 id. 272.) The question, therefore, is whether allowance of the present application would be in aid of the appellate jurisdiction of this court.

The former appeal in Jenkins v. Talbot, 338 Ill. 441, is relied upon as the basis for the point that the court has at this time power to entertain the present application in aid of its appellate jurisdiction, but in that case this court did not enter the judgment or decree now sought to be protected. It merely affirmed the decree of the circuit court of Cook county, from which the appeal had been taken. The concluding sentence of the opinion in that case was as follows: "We find no error in the decree of the circuit court, and it will therefore be affirmed."

When a superior court affirms a decree it simply decides that there is no error in the decree and that the decree of the lower court should therefore stand. The superior court does not, by affirming, either adopt the decree of the inferior court as its own or promulgate as its decree the decree of the inferior court. It is only when the superior court either enters a decree of its own (other than a mere affirmance) or directs the inferior court to enter a particular decree that the decree entered can be considered in any sense the decree of the superior court. (Smith v. Dugger, 318 Ill. 215; People v. Gilmer, 5 Gilm. 242.) It is, of course, recognized that if this court either enters such a judgment or decree of its own, as permitted by the statute, (Smith v.Dagger, supra,) or directs the lower court to enter a certain decree, that decree becomes the decree of this court and not of the inferior court. But the result is not the same where this court, finding no error in the decree of the inferior court, permits that decree to stand by affirming it.

The only case in this State which deals with this question isPeople v. Superior Court, 234 Ill. 186, which is cited in the majority opinion. In that case it appeared that Ralph Lipsey had been convicted and sentenced to the penitentiary. He sued out a writ of error to this court to review the record. The judgment was affirmed and the mandate of this court issued. Thereafter a writ of habeas corpus was issued by a judge of the superior court of Cook county on the theory that the judgment of conviction was void, and pursuant thereto Lipsey was delivered into the custody of the sheriff of Cook county. An original petition for certiorari was filed in this court to review the record of the superior court in the habeas corpus proceeding, and on that review the record of the superior court was quashed. This court held that it had jurisdiction to entertain that proceeding in aid of its appellate jurisdiction in the former case but based its decision entirely upon the nature of the judgment which was entered by this court in that case pursuant to the statute. The court referred to the statute which applies only to criminal cases, as follows: "Section 465 of chapter 38, Hurd's Revised Statutes of 1905, provides: 'If the judgment is affirmed, the Supreme Court shall direct the court in which the original sentence was rendered to carry the same into effect, and shall give judgment against the plaintiff in error for costs, and execution may issue therefor from the Supreme Court.' " And the court then stated the question before it for decision, as follows: "The question is, may we issue the writ to prevent the unauthorized and illegal acts of a court or judge interfering with the execution of a judgment which we have affirmed and which we have directed the criminal court to carry into effect?"

The discussion in the opinion in that case shows that it was because of this statutory provision and the nature of the judgment entered by this court in criminal cases that the court held it had jurisdiction to entertain the certiorari proceeding. Thus, the following language and thought permeate the entire discussion on this question: "Here we have affirmed the judgment of the criminal court and have directed that it be carried into effect." And in concluding the discussion on this subject the court said: "Under such circumstances a writ ofcertiorari may properly issue from this court in aid of and to protect the appellate jurisdiction of this court and to prevent an unlawful interference with the execution of the sentence which this court has directed the criminal court to carry into effect." In the present case, however, and in all other civil cases where this court on appeal or writ of error merely affirms a judgment or decree, there is no reason whatever for holding that by affirmance this court either adopts the judgment or decree of the trial court or promulgates it as the judgment or decree of this court. A mere affirmance in this respect has no more effect than if the judgment or decree of the trial court had never been appealed from. It is the judgment or decree of the trial court which is effective as resjudicata and not any judgment or decree of this court. Interference with the decree of a trial court in such case is not in any sense an interference with a decree of this court. It is not in any sense an interference with or encroachment upon the appellate jurisdiction of this court. Whatever power this court might have to protect its appellate jurisdiction in a case still pending before it, or in a case where this court had entered or directed the entry by the trial court of a particular decree, no such power exists to protect a decree of a trial court which this court has merely held was free from error.

The only other decisions cited on this point in the majority opinion are City of Palestine v. City of Houston, 262 S.W. (Tex.) 215, and State v. White, 40 Fla. 297, 24 So. 160. The latter case is easily disposed of. It holds, merely, that where the superior court by its mandate directs the inferior court to enter a particular decree, the inferior court cannot, without the permission of the superior court, entertain a bill to review that decree. So far as that case may be considered an authority against the right of a trial court to entertain a bill of review after an affirmance of a decree by this court it is in conflict with Schaefer v. Wunderle, 154 Ill. 577, where it was held that even after this court has affirmed a decree the lower court may entertain a bill of review to review that decree. City of Palestine v. City of Houston was decided by the Court of Civil Appeals of Texas, which is an intermediate appellate court comparable to our Appellate Court. Although the court there held that a writ of prohibition would issue by that court in aid of its appellate jurisdiction after an affirmance of a decree by that court, it is clear that this was because of a peculiar practice in Texas which does not exist here. Thus, the two decisions relied upon by the court in that case (Cattleman's Trust Co. of Fort Worth v. Willis, 179 S.W. 1115, and Williams v. Foster, 229 id. 896,) show that the Court of Civil Appeals had, in fact, entered something more than mere judgments of affirmance. In the Cattleman's Trust Co.case it appeared that the Court of Civil Appeals in affirming the trial court entered its own judgment for the amount of the judgment in the lower court, together with the further sum of ten per cent thereon as damages for delay, etc. And the opinion in the Williams case shows that it was only in pursuance of the mandate of that court that the judgment of the trial court was "recorded" and made effective. Thus, in both cases the judgment was something more than a mere judgment of affirmance. In both cases it was the judgment of the superior court itself, and not the judgment of the inferior court, which was being violated and as to which the writ of prohibition issued.

In the case before us the majority opinion seeks to show that it is the judgment of this court which has been interfered with by the circuit court of Washington county. Thus it states: "The judgment of this court which the temporary injunction of the respondent court was designed to affect was that section 42 of the by-laws as amended was a valid and legal by-law, and that judgment therefore necessarily fixed the right of the petitioner society to collect the assessment provided for by that by-law, and the temporary injunction could have no other effect than to obstruct that judgment." In my opinion that language discloses the fallacy of the majority opinion. This court entered no such judgment as that referred to. The decree sustaining the validity of the by-law was the decree of the trial court. All this court did was to say that the decree of the trial court was free from error. The opinion of this court or the reasons therein stated do not constitute a "judgment" in the sense here used. The only judgment of this court in the case is a formal one, merely affirming the decree of the circuit court of Cook county. It is only the decree of the circuit court, and not the judgment of affirmance by this court, which is affected by the proceeding in the circuit court of Washington county, and this court has no power to issue a writ of prohibition to protect the decree of the trial court.

Moreover, it seems clear that the decision of this court denying the former application for a writ of prohibition in this case is conclusive upon the right to issue the writ upon the present application. When the former application was made to this court for the writ of prohibition the bill for injunction had been filed in the circuit court of Washington county. That court either had or did not have jurisdiction to entertain that proceeding at that time. If that court had no such jurisdiction at that time, and if this court had power to issue the writ in a case of this kind, the former application for the writ of prohibition should have been granted. By denying the writ of prohibition on October 11, 1930, this court necessarily decided that the circuit court of Washington county had jurisdiction of the subject matter and power to render some decision in the case. Clearly, the denial of the writ of prohibition at that time amounted to a holding that the circuit court could entertain the proceeding and render a decision. If the circuit court had such jurisdiction at that time its jurisdiction is not at all affected by reason of the fact that it has made, or may make, a decision for complainants rather than for defendants in that case. "Jurisdiction is the power to hear and determine the matter in controversy between parties, and if the law gives the court power to render a judgment or decree then the court has jurisdiction. Jurisdiction does not depend upon the correctness of the decision and is not lost by an erroneous decision." (Lyon Healy v. Piano Workers' Union,289 Ill. 176.) "Jurisdiction does not depend on the rightfulness of the decision. It is not lost because of an erroneous decision, however erroneous that decision may be." (O'Brien v. People, 216 Ill. 354.) The present opinion of the majority of this court demonstrates that the writ of prohibition will not issue except where the inferior court is without jurisdiction of the subject matter of the proceeding pending before it. It therefore seems clear that the denial by this court of the first application for a writ of prohibition was a conclusive determination that the circuit court of Washington county had jurisdiction to entertain and enter some kind of a decree in the injunction suit. The mere fact that the circuit court may decide the case erroneously does not deprive it of its jurisdiction or render its action void. It is my opinion that this court is bound by its decision denying the first application for the writ of prohibition.

Where a superior court, on appeal, expressly directs the inferior court to enter a certain judgment or decree, it is, of course, the duty of the inferior court to do so. It can not take any other or different action than that directed by the superior court, (Fisher v. Burks, 285 Ill. 290,) and yet the failure or refusal of the inferior court in the same case to comply with the mandate of the superior court does not deprive the inferior court of jurisdiction or render its action void. Such action constitutes merely error, which may be reviewed on a further appeal. (Vail v. Arkell, 146 Ill. 363; Smith v.Dugger, supra.) And so in this case the injunctional order of the circuit court was not void. At most it was merely erroneous and the appropriate remedy was by appeal from that order.

The majority opinion takes the view that an appeal would not have constituted an adequate remedy for the protection of the defendant in that case. With deference, it seems to me that the question of expediency and the necessities of the petitioner, if it has any proper place in this case, should not be made the controlling consideration in determining the jurisdictional question. The argument is, that unless the writ of prohibition is issued the interlocutory injunctional order will prevent the petitioner from collecting large sums of money as premiums at the increased rate and so will damage its business. But if the petitioner will be so injured, it is apparent that in the absence of the injunctional order the one million members of the petitioner will be injured to the same extent by being required to pay that amount of money in increased rates. The question which this court has undertaken to decide is whether the original decree of the circuit court of Cook county constitutes res judicata in the present suit in the circuit court of Washington county. That is a question of which the latter court has jurisdiction and which it should decide on the record before it without interference by this court. If, whenever this court affirms a judgment or decree of a trial court, it is to follow the case and ascertain whether a new suit is instituted on the same cause of action, and, if so, to issue a writ of prohibition against the trial court, there will be no end to the number of such applications which this court will be called upon to grant. The great number of cases in which the question of res judicata is raised attests this. I know of no case where this court has undertaken to transfer to itself a question of that kind properly before a trial court for decision, even where the decree was a decree entered or directed by this court. Much less reason is there for this court to protect a decree entered by a trial court, which is not in any sense the decree of this court.

Even assuming that the decision in this case should be placed upon the ground of expediency, does it appear that the petitioner was without adequate remedy except by the application for a writ of prohibition? Under the provisions of section 123 of the Practice act (Cahill's Stat. 1931, chap. 110, par. 122, p. 2189,) the defendant was entitled to appeal immediately from the injunctional order. The appeal could have been perfected in a few days, and would, by virtue of the statute, take precedence over other causes in the Appellate Court and a prompt decision could have been obtained. As it is, the decision of this court in the present case was not rendered until more than a year after the date of the injunctional order. Furthermore, if the circuit court of Washington county had no jurisdiction to entertain the bill for an injunction, as the majority opinion holds, the defendant in that case could have filed a bill for an injunction restraining the complainants from prosecuting that suit, or it could have applied to this court for a writ of mandamus to expunge the injunctional order on the ground it was void, and this court, having original jurisdiction in mandamus, could have granted that relief.

In view of the remedies which were available to petitioner, and in my opinion clearly adequate, I see no reason or justification for the exercise of a jurisdiction (by writ of prohibition) which in my judgment the court does not have in such a case. So far as I have been able to ascertain, litigants have sought to invoke the jurisdiction of this court to grant a writ of prohibition in only three cases during the past century, and it is significant that this jurisdiction has not been exercised in a single case. The closest approach to the exercise of such a jurisdiction by this court was inPeople v. Superior Court, supra, where the court issued a writ of certiorari. But, as above stated, jurisdiction clearly appeared in that case by reason of the fact that this court had done something more than merely to approve a judgment of the trial court. There, in obedience to a statute, the court not only affirmed the judgment but also "directed that it be carried into effect." In view of that distinguishing and controlling circumstance the decision not only fails to support the majority opinion in the present case but is an authority against it.

For the above reasons I am of the opinion that the application for the writ of prohibition should have been denied.