Evans v. Eastman

Mr. Justice Windes

delivered the opinion of the court.

Secs. 81, 82 and 83, Chap. 110, of Ill. Rev. Stats., are as follows:

“ Sec. 81. The Supreme Court or Appellate Court, in case of a partial reversal, shall give such judgment or decree as the inferior court ought to have given, and for this purpose may allow the entering of a remittitur, either in term time or vacation, or remand the cause to the inferior court for further proceeding, as the case may require.

“ Sec. 82. When an appeal or writ of error shall be prosecuted from a judgment, order or decree to the Supreme Court or Appellate Court, and such appeal or writ of error is dismissed, or the judgment, order or decree is affirmed, upon a copy of the order of the Supreme Court or Appellate Court, as the case may be, being filed in the office of the clerk of the court from which the case was originally removed, execution may issue and other proceedings may be had therein in all respects as if no appeal or writ of error had been prosecuted.

“ Sec. 83. When any cause or proceeding either at law or in chancery, is remanded by the Supreme Court or Appellate Court, as the case may be, for a new trial or hearing by the court in which sucii cause was originally tried, the Supreme Court, or Appellate Court, as the case may be, shall issue its mandate reversing and remanding such cause directly to such trial court; and upon a transcript of the order of the Supreme Court or Appellate Court, as the case may be, remanding the same, being filed in the court in which such cause was originally tried, and not less than ten days’ notice thereof being giving to the adverse party or his attorney, the cause or proceeding shall be reinstated therein.”

The contention of plaintiffs in error that they were entitled to ten days’ notice of the reinstating and redocketing of the cause in the court below, and that the mandate of the Appellate Court wouid be filed, is not tenable.

The original decree of the Circuit Court, as it will be observed from the statement preceding this opinion, was affirmed, except a certain part of the decree, which was reversed, but no remanding order was made, and the proceedings thereafter to be taken in the Circuit Court are governed by Secs. 81 and 82, supra. By Sec. 81 it is provided that where there is a partial reversal the Appellate Court might enter such decree or judgment as the lower court ought to have done. This was accomplished by the simple reversal of that part of the decree which the Appellate Court found to be erroneous, and was complete without any remanding order as to that part of the decree.

By Sec. 82 it is provided that in case the decree of the lower court is affirmed, upon a copy of the order of the Appellate Court being filed in the office of the clerk of the lower court, “ execution may issue and other proceedings may be had therein in all respects as if no appeal or writ of error had been prosecuted.” In each of these Cases no notice is required. A notice is required only in the event of a case being remanded “ for a new trial or hearing by the court.” (Sec. 83, supra.) In the case at bar, as we have seen, there was no remanding order, and nothing remained for the court below except to execute its original decree, save in the respects in which it was reversed.

The whole of the argument of counsel for plaintiffs in error being based- upon the contention that the Circuit Court had no jurisdiction to reinstate the cause, what we have said fully disposes of the several errors assigned.

In view of the disposition of this case by the court we deem it unnecessary to pass upon the motion of defendants in error to dismiss the writ of error.

There being no error in the record, the decree of the Circuit Court is affirmed.