Imágenes de páginas
PDF
EPUB

such a school district, the ruling on the demurrer was right and otherwise it was wrong. Counsel for the appellees say that it was right because the territory of a township is contiguous and compact and is in the same township, so that it comes exactly within the language of section 6, which makes section i redundant and superfluous. The argument does not take into account all the language of section 6, and departs from the rule always followed by courts in construing statutes, that every part of a statute shall be upheld and the statute be so construed that no part shall be superfluous or inconsistent. (Mechanics' Savings Institution v. Givens, 82 Ill. 157; Hunt v. Chicago Horse and Dummy Railway Co. 121 id. 638; Misch v. Russell, 136 id. 22; Crozer v. People, 206 id. 464.) It would be strange, indeed, if the General Assembly, having reason to impose a restriction requiring a school district of a certain size in the township and having by section I made the existence of such a district a jurisdictional fact, intended to remove that restriction in section 6 of the same act so as to defeat and nullify what had just been done. It is true that every township is composed of contiguous and compact territory, but the General Assembly by section i provided the conditions on which such territory could be organized into a high school district and certainly intended to provide for a different case by section 6. The argument ignores the material language of section 6, which provides that the territory shall be in the same or different townships. That language indicates the position of a compact and contiguous territory with respect to a township or townships, and means situated inside of or within a township or townships. Such a description of a territory naturally means a part and not the whole. The court considered the act in the case of People v. Crossley, 261 Ill. 78, and said that it provides for the organization of high school districts in two different situations, the first being provided for in section i for the organization of a single school township in which

there is a school district having a population of 1000 or more and not exceeding 100,000 inhabitants, and the second provided for in section 6, where the proposed territory is contiguous and compact and either in the same or different townships. The act was again considered in People v. Carter, 264 Ill. 42, where the court said that the population requirement has no application to the organization of a district out of contiguous and compact territory in different townships but does apply where the territory comprises a single township. We still regard those conclusions as correct when considered from any standpoint or any rule governing the construction of statutes. The court erred in overruling the demurrer.

The judgment is reversed and the cause is remanded to the circuit court, with directions to sustain the demurrer.

Reversed and remanded, with directions.

HENRY D. LAUGHLIN, Plaintiff in Error, vs. CHARLES H.

NORTON et al, Defendants in Error.

Opinion filed April 22, 1915.

1. APPEALS AND ERRORSduty of Appellate Court to make finding of facts. Whenever the Appellate Court reverses a judgment without remanding the cause for a new trial and enters final judgment, if the judgment is the result, wholly or in part, of finding the facts concerning the matter in controversy different from the finding of the trial court, the Appellate Court must recite in its finding, order, judgment or decree the facts as found, and the facts as so found and incorporated in the judgment are conclusive in the Supreme Court on appeal or writ of error.

2. Same-Appellate Court must make finding concerning every material issue. To sustain a judgment of the Appellate Court reversing a judgment with a finding of facts without remanding the cause, the court must make a finding of fact upon every material issue upon which the rights of the parties depend; but if there is any material fact in controversy concerning which there is no finding it will be presumed the Appellate Court found that fact the same as the trial court.

3. Samewhat necessary to make a finding of facts sufficient. The finding of facts contemplated by the statute is a finding of the ultimate fact or facts upon the existence or non-existence of which the rights of the parties depend and does not consist of a recital of the evidence, but to be sufficient it must be such that the Supreme Court can determine whether the law was properly applied by the Appellate Court to the facts as found.

4. Same—when finding of facts is not sufficient. If the rights of the parties in an action to recover money do not depend upon any single fact but upon several, including the facts whether certain advancements of money were loans and whether payments were made and contracts performed, a mere finding as to the ultimate fact whether the defendants are indebted to the plaintiff or the plaintiff is indebted to the defendants is not sufficient.

5. Same-statement of facts in Appellate Court opinion does not supplement the finding of facts in the judgment. The statement of facts contained in the discussion of the evidence in the opinion of the Appellate Court is not the recital of facts contemplated by the statute, and the opinion cannot be resorted to. to aid or supplement the findings in the judgment.

WRIT OF ERROR to the Branch “B” Appellate Court for the First District;-heard in that court on appeal from the Municipal Court of Chicago; the Hon. John J. ROONEY, Judge, presiding.

Elias H. HENDERSON, and HEBEL & Haft, (CHARLES M. Haft, of counsel,) for plaintiff in error.

CASTLE, WILLIAMS, Long & CASTLE, and MIGHELL, GUNSUL & ALLEN, for defendants in error.

Mr. Chief Justice Cartwright delivered the opinion of the court:

Henry D, Laughlin, plaintiff in error, sued Charles H. Norton and Henry P. Norton, defendants in error, in the municipal court of Chicago, and on a trial by the court without a jury recovered a judgment for $1895.20. The defendants appealed to the Appellate Court for the First District, and that court reversed the judgment of the municipal court, made and entered of record a finding of facts as a part of its judgment, and rendered a judgment against the plaintiff for $3210.28. A writ of certiorari for the purpose of reviewing the judgment of the Appellate Court was awarded, and it is assigned for error that the Appellate Court erred in reversing the judgment of the municipal court and that the finding of facts is insufficient to sustain the judgment.

Whenever the Appellate Court reverses a judgment without remanding the cause for a new trial and enters final judgment, if the judgment is the result, wholly or in part, of finding the facts concerning the matter in controversy different from the finding of the trial court, the statute requires the Appellate Court to recite in its finding, order, judgment or decree the facts as found, and the facts as so found and incorporated in the judgment are conclusive in this court on appeal or error. If there is any material fact in controversy concerning which there is no finding, it will be presumed that the Appellate Court found the facts the same as the trial court. (Hayes v. Massachusetts Mutual Life Ins. Co. 125 Ill. 626; Coverdale v. Royal Arcanum, 193 id. 91; Sellers v. Thomas, 185 id. 384.) To sustain its judgment the Appellate Court must make a finding of fact concerning every material issue upon which the rights of the parties depend. Commercial Ins. Co. v. Scammon, 123 Ill. 601; Neer v. Illinois Central Railroad Co. 138 id. 29; Hawk v. Chicago, Burlington and Northern Railroad Co. id. 37; Morris v. Wibaux, 159 id. 627.

Looking to the pleadings to see what issues were formed thereby and to the bill of exceptions to ascertain what facts were controverted at the trial, we find the following: The plaintiff filed as his claim the common counts, with a bill of particulars of three loans made by him to the defendants: one for $1891.95, made on January 18, 1905; another for $1125.81, made on October 30, 1905; and another for $1000, made on May 21, 1907. His claim was for the amount of the said loans, with interest. The defendants filed a claim of set-off of two items: one of $2046.82 agreed to be paid by a contract of May 6, 1905, with interest from that date, and the other of $1251.35, agreed to be paid by a contract of October 31, 1905, with interest from April 31, 1906. The defendants gave credit to the plaintiff for the item of $1000 mentioned in the bill of particulars as loaned on May 21, 1907, with interest thereon. The plaintiff filed an affidavit of merits to the claim of set-off, in which he did not dispute the item of $2046.82, which he agreed to pay by the contract of May 6, 1905, but alleged that he was entitled to a credit of $1891.95, mentioned in his bill of particulars as a payment upon the same. The affidavit alleged that the defendants did not perform their contract of October 31, 1905, in which he agreed to pay them $1251.35, and that he did not waive any of the covenants or conditions of the agreement, so that they were not entitled to set off that sum of money. The issues formed by the pleadings were whether the $1891.95 loaned to the defendants on January 18, 1905, should be credited as a payment on the contract of May 6, 1905, and whether the defendants had performed their contract of October 31, 1905, or performance had been waived by plaintiff, so that he was bound to pay the $1251.35 stipulated in that contract, with the interest.

At the trial there was no dispute of the fact that the loans were made by the plaintiff as stated in the bill of particulars, and there was no controversy respecting the agreement of the plaintiff to pay the defendants $2046.82, as stated in the claim of set-off. The plaintiff proved the contract dated May 6, 1905, by which he agreed to pay the defendants the said sum of $2046.82, with interest at five per cent, and they agreed to assign to him a contract, known as No. 530, which they held with the North Wis

« AnteriorContinuar »