Remanded, with directions.
The circuit court of Cook County entered judgment on a jury verdict awarding damages to plaintiff, Charles Petty, in the amount of $75,000 for personal injuries sustained in a collision between the automobile in which he was riding and defendant's train, and the Appellate Court reversed and remanded the cause for a new trial on the ground that the verdict was manifestly against the weight of the evidence. Plaintiff's motion to strike the remanding order, supported by affidavits, stating that he could adduce no further evidence and waiving his right to a new trial, in accordance with section 75(2)(c) of the Civil Practice Act, was allowed by the Appellate Court, and we have granted plaintiff's petition for leave to appeal.
Before the merits and facts of this cause may be considered, it is incumbent upon this court to determine whether our appellate jurisdiction has been properly invoked. In this connection, we must ascertain the effect of section 75(2)(c) of the Civil Practice Act on our power to review judgments of the Appellate Court. It was to clarify this issue that the petition for leave to appeal was allowed.
Plaintiff contends that section 75(2)(c) of the Civil Practice Act (Ill. Rev. Stat. 1951, chap. 110, par. 199,) as construed in Olson v. Chicago Transit Authority, 1 Ill.2d 83, sanctions review in this court of all Appellate Court cases in which the losing party, whose judgment in the trial court was reversed and remanded by the Appellate Court, finalizes the judgment by filing the requisite motion and affidavit.
Section 75(2)(c) provides: "In any case heard and determined in the trial court upon actual trial in which the Appellate Court upon appeal from the final judgment or decree entered in the cause in the trial court reverses said judgment or decree and remands the cause for a new trial or hearing, and in which the party in whose favor the trial court's judgment or decree was rendered shall present to
It is apparent that this section gives the party whose judgment in the trial court has been reversed and remanded by the Appellate Court the right to finalize the judgment by filing a motion and affidavit requesting that the remanding portion of the judgment be deleted, and stating that he would be unable on a future trial to adduce other evidence, and that he waives his right to a new trial. The question is whether the section goes further and nullifies the provision of section 92(3)(b) of the Civil Practice Act (Ill. Rev. Stat. 1955, chap. 110, par. 92(3)(b),) which prohibits this court from examining the question of whether the judgment was "against the manifest weight of the evidence" in cases that are brought to this court by appeal from the Appellate Court.
The primary inquiry in Olson v. Chicago Transit Authority, 1 Ill.2d 83, was the constitutionality of section 92(3)(b) of the Civil Practice Act, which was attacked on diverse grounds. Plaintiffs therein argued that under the terms of section 92(3)(b), as construed by the court,
In reconciling the two statutory provisions it is evident that under the terms of section 75(2)(c), this court can review judgments finalized under this section only on the same basis and subject to the same rules as other final judgments of the Appellate Courts. Such review is restricted to questions of law by section 92(3)(b) of the Civil Practice Act, which provides that except as to equitable issues, the Supreme Court shall re-examine cases brought to it by appeal from the Appellate Court as to questions of law only. Consequently, it must be concluded that unless the cause presents a question of law, this court is without power to review an Appellate Court judgment reversing
Therefore, pursuant to our authority under section 92(1)(e) of the Civil Practice Act authorizing us to enter any order which ought to have been given or made, or as the case may require, the cause is remanded to the Appellate Court, with directions that the remanding order be reinstated. This conclusion is not intended to, and does not, express approval of the determination of the Appellate Court on the issue of the manifest weight of the evidence.
Remanded, with directions.