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  "name": "Leonard C. Reid, Administrator of the Estate of E. Bittner, for use of Fitzpatrick Brothers, Appellee, v. Chicago Railways Company and Chicago City Railway Company, Appellants",
  "name_abbreviation": "Reid v. Chicago Railways Co.",
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    "parties": [
      "Leonard C. Reid, Administrator of the Estate of E. Bittner, for use of Fitzpatrick Brothers, Appellee, v. Chicago Railways Company and Chicago City Railway Company, Appellants."
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      {
        "text": "Mr. Justice Johnston\ndelivered the opinion of the court.\n'This is an appeal by the Chicago Bailways Company and the Chicago City Bailway Company, appellants, from an order of the superior court of Cook county in a proceeding in the nature of a writ of coram nobis vacating an order dismissing an action of trespass on the case for the alleged wrongful death of E. Bittner. The action was brought against.appellants by appellee, Leonard C. Eeid, as administrator of the estate of Bittner for his own use as administrator and for the use of Fitzpatrick Brothers. The facts leading up to the proceeding in the nature of a writ of coram nobis are as follows:\nThe action of trespass on the case was regularly assigned to the calendar of Judge Fitch when the calendars of the judges were prepared in the fall of 1917. April 12, 1918, the case appeared on Judge Fitch\u2019s daily trial call, and on that date Judge Fitch entered an order striking the case \u201coff the calendar on account of the previous engagement of the attorney for the plaintiff in said cause.\u201d June 5, 1918, the case again appeared on the daily trial call of Judge Fitch, although no order of reinstatement had been entered of record. Appellee proved by oral testimony, over the objection of appellants, that on May 29,1918, after notice to appellants, a motion was made by appellee before Judge Fitch to reinstate the case, and that Judge Fitch directed his minute clerk to put the case on the foot of the trial call for June 1, 1918. The case did not appear on the trial call on June 1, but did appear on June 5. Irrespective of the question whether the case was reinstated at the instance of appellee, the undisputed fact is that it did appear on the trial call of Judge Fitch on June 5, 1918. It is also an undisputed fact that no order was entered of record reinstating the case. June 5, 1918, Judge Fitch continued the case generally. Appellee proved by oral testimony, over the objection of appellants, that on June 10,1918, after notice to appellants, a motion was made by appellee to reinstate the case, and that Judge Fitch directed his minute clerk to put the case on the trial call for June 17, 1918. It is an undisputed fact that the case did appear on Judge Fitch\u2019s trial call for June 17, 1918; and it is also an undisputed fact that no order of record was entered reinstating the case.\nIn the meantime, on June 5, 1918, the same day on which Judge Fitch had continued the case generally, Judge McKinley entered an order directing the clerk of the superior court to \u201cprepare a calendar of all common-law cases stricken from the present calendar, continued generally, and passed on notice prior to June 1, 1918.\u201d The order also recited that in the call of the cases if no person appeared for either side in any case, the case would be dismissed for want of prosecution. The order was published in the Chicago Daily Law Bulletin on Friday, June 14, and Saturday, June 15. On Monday, June 17, the case appeared on the trial call of Judge McKinley. On the same day, June 17, the case also appeared on the trial call of Judge Fitch. The Chicago Daily Law Bulletin had previously published the case in the list of cases that would be called by Judge Fitch on June 17. When the case was called by Judge McKinley on June 17, no one appeared for either side, and it was dismissed for want of prosecution.\nOn the call of the case before Judge Fitch on June 17 both sides were represented, but no action was taken in the case on that date. The case remained on Judge Fitch\u2019s trial call daily from that date until June 26, when it was stricken off of his call on account of the engagement of counsel.\nAppellee filed a motion under section 89 of the Practice Act [Cahill\u2019s Ill. St. ch. 110, ft 89] in the nature of a writ of error coram nobis to vacate and set aside the order of Judge McKinley dismissing the ease for want of prosecution, on the ground that if the facts relating to the status of the case before Judge Fitch had been known by Judge McKinley he would, as a matter of law, have been precluded from entering the order of dismissal.\nIt is contended by counsel for appellants that the motion in the nature of a writ of error coram nobis is not available to vacate the order of dismissal of the original action of trespass on the case for the reason that the latter is \u201cpurely a statutory action,\u201d and the motion is only appropriate in common-law proceedings. Counsel for appellants maintain that the original action is not only a statutory proceeding, but that it has \u201ca double statutory character,\u201d in that it is based both on the Injuries Act and the Workmen\u2019s Compensation Act. Counsel argue as follows: \u201cThe declaration in the original action was an attempt to maintain the statutory action by an administrator for wrongfully causing the death of his intestate. The allegations that plaintiff was suing for his own use as such administrator and for the use of Fitzpatrick Brothers, a corporation, show that the action was an attempt to sue under section 29 of the Workmen\u2019s Compensation Act [Cahill\u2019s Ill. St. ch. 48, f[ 229] to recover for the benefit of plaintiff\u2019s employer against third persons whose alleged negligence is claimed to have caused a fatal injury to one who was an employee of the beneficial plaintiff.\u201d\nCounsel for appellants are correct in their contention that the motion in the nature of a writ of error coram nobis is not appropriate in statutory proceedings. Bishop v. Illinois Western Electric Co., 221 Ill. App. 141. The question then to be determined is whether the original action of trespass on the case is a statutory proceeding.\nWe shall consider first the question whether the original action is a statutory proceeding in contemplation of the Injuries Act. That act consists of two sections. The first section creates a new right of action. The second section provides, in substance, who shall bring the action, names the beneficiaries, limits the amount of damages, prescribes the time for the commencement of the action, and directs that no action shall be brought for a death outside of the State.\nAt common law no right of action existed where death resulted from a \u201cwrongful act, neglect or default,\u201d and the purpose of the Injuries Act is to give such a right of action. Crane v. Chicago & W. I. R. Co., 233 Ill. 259, 262. But in granting this new right of action a \u201cstatutory proceeding\u201d was not created, hut only a statutory right. There is a material distinction between a statutory right and a statutory proceeding. We can find no precise definition of a statutory proceeding. However, the general character of such a proceeding may be ascertained from the language of the courts in decisions considering proceedings that are purely statutory. In Lavin v. Wells Bros. Co., 272 Ill. 609, 611, a statutory proceeding is spoken of as a proceeding \u201cinvolving rights and providing remedies which are not of the kind previously enforced either at law or in chancery.\u201d In Central Illinois Public Service Co. v. Industrial Commission, 293 Ill. 62, in considering the Workmen\u2019s Compensation Act, the court said (p. 66): \u201cActions and remedies under the Workmen\u2019s Compensation Act were unknown at common law. The entire subject of compensation for injuries to employees is of a statutory origin. All proceedings thereunder are purely statutory.\u201d\nIt follows from the above decisions that a statutory proceeding may be generally described as a proceeding in which a statute creates new rights and prescribes new remedies unknown to the common law and intended to be exclusive of the common law. In other words, a statutory proceeding is a proceeding independent of the common law. In this view of a statutory proceeding it is plain that the Injuries Act is not a statutory proceeding. It merely creates a new right of action, but the procedure for enforcing the provisions of the act is not prescribed. In practice the common-law procedure is followed. O\u2019Brien v. Chicago City Ry. Company, 305 Ill. 244. This practice is in accordance with proper statutory construction.\nIf a new right is created by statute and no remedy is prescribed, it will be presumed that a common-law action was intended. Ohio & M. Ry. Co. v. McGehee, 47 Ill. App. 348, 351. It is also a familiar rule of construction that \u201cstatutes should be construed with reference to the principles of the common law, and it will not be presumed an innovation thereon was intended farther than is specified or clearly to be implied.\u201d People v. Clark, 268 Ill. 156, 163; Canadian Bank of Commerce v. McCrea, 106 Ill. 281.\nIt is apparent that the Injuries Act does not purport to create a proceeding which is independent of the common law, but only intends to create new rights which are to be enforced by the common law. The operation and effect of the act is dependent upon the common law. In our opinion an action brought by virtue of the Injuries Act is not a statutory proceeding.\nA number of cases are cited by counsel for appellants, which, according to the contention of counsel, hold that \u201can action for\" a wrongful death is wholly a statutory proceeding.\u201d We have examined these cases and find that none holds that the action for a wrongful death is a \u201cstatutory proceeding.\u201d They only hold that the action is a new cause of action created by the statute. That is a very different thing from a \u201cstatutory proceeding.\u201d\nCounsel for appellants further contend that independently of the Injuries Act the original action of trespass on the case is a statutory proceeding by virtue of section 29 of the Workmen\u2019s Compensation Act [Cahill\u2019s Ill. St. eh. 48, [\u00b6] 229]. Counsel argue that \u201cthere is only one way such a statutory cause of action may be maintained for the use or benefit of a third person, and that is by reason of the assignment of the cause of action made by section 29 of the Workmen\u2019s Compensation Act\u201d; and that for this reason the original action is a statutory proceeding. In our view the record in the case at bar does not show that the original action was brought under the authority of section 29 of the Workmen\u2019s Compensation Act. Counsel for appellants assert that the \u201callegations that plaintiff was suing for his own use as such administrator and for the use of Fitzpatrick Brothers, a corporation, show that the action was an attempt to sue under section 29 of the Workmen\u2019s Compensation Act.\u201d We do not agree with counsel\u2019s contention that these allegations are sufficient of themselves alone to justify the inference that the original action is brought under section 29 of the Workmen\u2019s Compensation Act. But even if it expressly appeared from the record that the original action was 'brought by virtue of section 29 of the Workmen\u2019s Compensation Act, we do not think that such an action would be a statutory proceeding. \u201cThe right of the employer to sue is not a new cause of action created by section 29, but is the employee\u2019s right of action taken from him and transferred to the employer.\u201d Joseph Schlitz Brewing Co. v. Chicago Rys. Co., 307 Ill. 322, 327. The mere transference of the employee\u2019s right of action to the employer does not create a statutory proceeding. Section 29 does not provide the procedure by which the right of action so transferred is to be enforced, but permits the action to be prosecuted according to common-law procedure. From the views that we expressed in considering the Injuries Act, it follows that the original action is not a statutory proceeding by virtue of section 29' of the Workmen\u2019s Compensation Act.\nCounsel for appellants argue with confidence that the original action is a statutory proceeding. They say: \u201cEither we are right in our claim that the original action here by Reid as administrator for the benefit of Fitzpatrick Brothers was a statutory proceeding, or this court was wrong in its holding that the proceeding dismissed in the circuit court in the Bishop-Wagener case was not a proceeding under the common law, but purely a statutory proceeding.\u201d\nIn our opinion the case referred to by counsel, namely, Bishop v. Illinois Western Electric Co., supra, is not conclusive of the case at bar for the reason that the proceeding in that case in which the motion in the nature of a writ of error coram nobis was made was a proceeding under the Workmen\u2019s Compensation Act, and therefore purely a statutory proceeding. The court expressly stated in that case that: \u201cThe proceedings both before the arbitrators and in the circuit court were pursuant to the Workmen\u2019s Compensation Act in force at the time of the injury, \u2019 \u2019 and that \u201cit has been repeatedly held that the proceeding on appeal from the Board of Arbitrators in the Workmen\u2019s Compensation Act is not a proceeding under the common law, but purely a statutory remedy. \u2019 \u2019\nCounsel for appellants in arguing further ask the following question: Since the original action is created by the Injuries Act and must be brought by the plaintiff within a year, \u201chow can such a plaintiff have any right to be plaintiff under a statute like section 89, which gives a person entitled to avail of it five years in which to institute new proceedings by motion!\u201d We think the argument is without merit. The same question might by analogy be asked in respect of the motion under section 89 of the Practice Act when made in any common-law action which is limited to be brought in less time than five years. The logic of counsel\u2019s contention would result in permitting the motion under section 89 to be made only in proceedings where the limitation of the action is at least equal to the period allowed for the filing of the motion. The fact that the Injuries Act is not a statute of limitations (Carlin v. Peerless Gas Light Co., 283 Ill. 142) does not, in our opinion, except it from the operation of the motion under section 89.\nAlthough the original action of trespass on the case is not a purely statutory proceeding, is it a proceeding unknown to the common law and of such a statutory character as to render the motion under section 89 of the Practice Act inapplicable? Or, to put the question in another way, is it a proceeding instituted and carried on in substantial conformity with the forms and modes prescribed by the common law? Section 89 provides that: \u201cThe writ of error coram nobis is hereby abolished, and all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing.\u201d The motion under the statute has the same scope that a writ of error coram nobis had at common law. \u201cWhile the statute abolished the writ, it did not abolish the essentials of the proceeding, which, in nature, remains the same.\u201d Mitchell v. King, 187 Ill. 452, 457. In determining whether the motion is applicable in the original action we may by analogy consider the rule relating to the scope of writs of error generally. From an examination of the nature of a writ of error both at common law and by statute, we find that in both instances the writ will lie to review a proceeding where the jurisdiction of the court is exercised according to the course of the common law, but not where the proceeding is a special statutory proceeding unknown to the common law. The right of review by a writ of error exists independently of any statutory or constitutional provisions, by force of the common law, in all cases in which the jurisdiction of the inferior court is exercised according to the course of the common law. People v. Emmerson, 294 Ill. 219, 220. By section 91 of the Practice Act [Cahill\u2019s Ill. St. ch. 110, 91] writs of error are authorized \u201cin any suit or proceeding at law or in chancery.\u201d In construing this section it has been held that the phrase \u201csuit or proceeding at law or in chancery\u201d does not include a statutory proceeding, but means any suit or proceeding \u201cinstituted and carried on in substantial conformity with the forms and modes prescribed by the common law or by the rules of chancery.\u201d Myers v. Newcomb Spec. Drain. Dist., 245 Ill. 140, 146; Christensen v. R. W. Bartelmann Co., 273 Ill. 346, 348; People v. Piccolo, 275 Ill. 453, 456. In order that section 91 may be inapplicable the proceeding must be instituted and carried on \u201csolely in accordance with the statutory provisions.\u201d People v. Piccolo, supra.\nThe procedure followed in the original action in the case at bar is the procedure of the common law. The right of action only is created by the Injuries Act, and section 29 of the Workmen\u2019s Compensation Act transfers to the employer the right of action thus created. The proceeding consists of statutory rights enforced by the common-law procedure. Such a proceeding is of the same general nature as an action at law. The right of action is new, but the procedure is not; and the right of action, although new in the sense that it could not be maintained at common law, and although not an action for a personal injury (Prouty v. City of Chicago, 250 Ill. 222, 227), is nevertheless similar in character to a right of action at common law for a personal injury. The original action in the case at bar is not instituted and carried on solely in accordance with statutory provisions, but is a proceeding in substantial conformity with the forms and modes prescribed by the common law.\nAnd being that kind of proceeding the motion in the nature of a writ of error coram nobis would apply by analogy with the writ of error at common law or by statute. If the original action in the case at bar was a special statutory proceeding unknown to the common law, the writ of err,or coram nobis would not apply, and neither would the writ of error at common law or by statute. Since counsel for appellants maintain that the original action in the case at bar was \u201cwholly a statutory proceeding\u201d and \u201cnot a common-law proceeding\u201d because of the fact that the Injuries Act grants a statutory right, then as counsel for appellee in their brief aptly observe, it would follow for a similar reason that \u201cin an action of assumpsit on a note, a writ of error would not lie because the particular right asserted was created by the Negotiable Instrument Act\u201d; and that \u201cin fact there would be few cases in which the writ would he, because in these days, most of our rights are regulated more or less by statute.\u201d Pursuing the same method of reasoning, counsel for appellee might have added that a writ of error either at common law or by statute would not lie to review a judgment in a case such as the original action in the case at bar, in which the right of action was created by the Injuries Act.\nAlthough counsel for appellants maintain that the original action in the case at bar was \u201cwholly a statutory proceeding\u201d and \u201cwas not a common-law proceeding,\u201d they contend that even if a writ of error might be applicable in the original action, the writ of error coram nobis would not he. The reason for the distinction between the scope of the two writs, as stated by counsel, is that the scope of the writ of error has been extended by statute (section 91 of the Practice Act), but that the scope of the writ of error coram nobis has not been extended by statute, and is confined to its scope at common law. It is true that section 91 has defined the scope of the writ of error, and it is also true that the scope of the writ of error coram no-bis has not been extended by statute. But section 91 has not extended the writ of error to special statutory proceedings unknown to the common law. In construing that section it has been expressly held that the phrase \u201csuits or proceedings at law or in chancery\u201d does not apply to special statutory proceedings unknown to the common law. Christensen v. R. W. Bartelmann Co., supra; Myers v. Newcomb Spec. Drain. Dist., supra; People v. Piccolo, supra. If it should be conceded, therefore, that a writ of error by virtue of section 91 would lie to review a judgment in a case such as the original action in the case at bar, the concession would necessarily compel the admission that the original action was not a statutory proceeding. In our opinion the original action in the case at bar was not a statutory proceeding, but was a proceeding in substantial conformity with the forms and modes prescribed by the common law. The writ of error, either at common law or by statute, would be applicable, as would also the writ of error coram nobis. As the motion under section 89 in the nature of a writ of error coram nobis has the same scope as the writ of error coram nobis, we are of the opinion that the motion was applicable in the original action in the case at bar.\nIt is contended by counsel for appellants that no error of fact was committed by the clerk of the superior court in putting the original action on the calendar of Judge McKinley. We think that the contention is correct. The clerk acted under the general order of June 5, 1918, directing him to prepare \u201ca calendar of all common-law cases stricken from the present calendar, continued generally, and passed on notice prior to June 1,1918.\u201d There is nothing in the record, however, as far as we are able to discover, which shows whether the clerk put the case on Judge McKinley\u2019s calendar because it was stricken off of Judge Pitch\u2019s calendar on April 12, 1918, or because it was continued generally by Judge Pitch on June 5, 1918. Counsel for appellants contend that the limitation of time of \u201cJune 1, 1918\u201d did not apply to cases stricken from the calendar and continued generally, but only to cases \u201cpassed on notice,\u201d and that as the original action had been continued generally by Judge Pitch, it properly came within the class of cases to be put on Judge McKinley\u2019s calendar by the clerk under the order of June 5,1918. Counsel for appellants further contend that as the original action was stricken off of Judge Fitch\u2019s calendar on April 12, 1918, that the case was within the terms of the general order of June 5, 1918, regardless of the question as to how the limitation of June 1, 1918, may be construed.\nWe doubt whether counsel for appellants\u2019 construction of the phrase \u201cJune 1, 1918,\u201d is correct, but irrespective of that question we do not think that the clerk committed an error of fact in putting the case on Judge McKinley\u2019s calendar. When the case was stricken off of Judge Fitch\u2019s calendar on April 12, 1918, the clerk assumed that it came within the general order of June 5,1918. It was reinstated by Judge Fitch, it is true, but no order was entered of record reinstating it, and the clerk, in our opinion, in determining the status of the case was only under the duty of examining the orders of record in the case. We think that this view is in accordance with a fair interpretation of the general order of June 5,1918, relating to the preparation of the calendar of cases by the clerk to be called by Judge McKinley. The clerk could not reasonably have been required to ascertain that the case had been reinstated by Judge Fitch without any order of record reinstating it. We are not to be understood, however, as expressing the opinion that the case was not properly reinstated by Judge Fitch because there was no order of record reinstating it. We merely hold that the clerk of the superior court is not to be charged with committing an error, or failing to perform his duty because he did not have knowledge of the fact that the case was reinstated without an order of record. The case of Madden v. City of Chicago, 283 Ill. 165, cited by counsel for appellee, as an authority that the clerk in the case at bar committed an error of fact in putting the case on Judge McKinley\u2019s calendar, is not in point. In the case of Madden v. City of Chicago, supra, the error of fact arose by reason of the failure of the minute clerk, on the \u201cfirst call\u201d of a trial calendar, to mark a case for trial which the attorney had requested to be so marked when it should be called. The court held that it was the duty of the minute clerk, under a rule of court, to indicate the desire of each attorney as expressed on the \u201cfirst call.\u201d\nCounsel for appellants further contend that the original action being properly on Judge McKinley\u2019s calendar, and improperly on Judge Fitch\u2019s calendar, there was no error of fact unknown to Judge McKinley which, if known to him, would have precluded him from dismissing the case. The error of fact, which is subject to correction on the motion provided for in section 89 of the Practice Act, must relate to a fact unknown to the court and which, if known, would, as a matter of law, preclude the rendition of a judgment. Cramer v. Illinois Commercial Men\u2019s Ass\u2019n, 260 Ill. 516. 522; Chapman v. North American Life Ins. Co., 292 Ill. 179, 185.\nOn June 17, 1918, the original action of trespass on the case appeared on both Judge McKinley\u2019s calendar and on Judge Fitch\u2019s calendar. On that date both counsel for appellants and counsel for appellee attended the call of the case before Judge Fitch, but no action was taken in the case by Judge Fitch. On the call of the case before Judge McKinley neither counsel for appellants nor counsel for appellee attended, and the case was dismissed by Judge McKinley for want of prosecution.\nCounsel for appellants contend that the case was not properly on Judge Fitch\u2019s calendar, for the reason that no order of record had been entered by Judge Fitch reinstating it; that \u201cjudicial acts are evidenced only by orders of record, and orders of a court of record not entered of record are extra-judicial and void.\u201d\nWe are of the opinion that the reinstatement of the case by Judge Fitch was not a judicial act, and that no order of record was necessary. It must be borne in mind that the case had been regularly assigned to the calendar of Judge Fitch when the calendars of the judges were prepared in the fall of 1917, and that the case was placed on Judge McKinley\u2019s calendar by the clerk of the superior court under the authority of a general order intended to clear the docket of cases that apparently had been abandoned. It certainly was not the object of the general order to work any injustice to litigants, but the only purpose of the order was to expedite the trial of cases. When Judge Fitch reinstated the case on his calendar he was not performing a judicial act, but a ministerial act. He was merely putting the case back on his calendar in order that a judicial act might be exercised in connection with the case. His act was no more a judicial act than was the act of the clerk and judge when together they made up the calendars for the judges in the fall of 1917. The calendars are made up by the clerk and judge acting together (Staunton Coal Co. v. Menk, 197 Ill. 369, 373, 374), and this is clearly a ministerial act. \u201cThe statute provides that the clerk shall keep a docket of all the cases. * * * It also authorizes the clerk to set and apportion the cases for as many days of the term as he may think necessary, or may be directed by the judge to do.\u201d Staunton Goal Co. v. Menk, supra. \u201cThe acts done out of court, in bringing parties into court, are, as a general proposition, ministerial acts; those done by the court in session, in adjudicating between parties, or upon the rights of one in court ex parte, are judicial acts.\u201d Flournoy v. City of Jeffersonville, 17 Ind. 169, 173. A judicial act has been defined as \u201cAn act performed by a court,' touching the rights of the parties, or property, brought before it by voluntary appearance or by the prior action of ministerial officers.\u201d Anderson\u2019s Law Dictionary, p. 578.\nIn Matthews v. Houghton, 11 Me. 377, the court said (p. 381): \u201cA magistrate does not act judicially in making up and completing his record. In doing this he performs himself what this court does by the agency of their cleric. It is a mere ministerial act.\u201d\nIn Johnston v. People, 31 Ill. 469, the court said (pp. 472, 473): \u201cGenerally, judicial acts cannot be performed on Sunday. Yet, verdicts of juries have been received on that day and held valid. * * * We do not consider the act of entering into a recognizance to be such a judicial act as to render its execution void because it was entered on Sunday. It has none of the elements of a judicial proceeding except that it is taken and acknowledged before a judicial officer, and is not, therefore, void by common law.\u201d\nIn Madden v. City of Chicago, supra, in which a case was stricken from the docket by the judge on the \u201cfirst call,\u201d the court held that there \u201cwas not a judicial determination\u201d since it was the duty of the minute clerk under a rule of court 1 \u2018 to indicate merely the desire of each attorney as expressed, and the court, in making the order, merely followed the minute record made by the clerk.\u201d\nWe are clearly of the opinion that in reinstating the original action of trespass on the case, Judge Fitch was not performing a judicial act, and therefore no order of record was necessary. It was entirely proper for him to direct his minute clerk orally to put the case back on the trial call. He could do this on his own motion or on the motion of the parties. In our opinion it is immaterial whether he reinstated the case at the request of appellee or whether he did it on his own motion. His act in either event was not judicial. The case was properly on Judge Fitch\u2019s calendar and improperly on Judge McKinley\u2019s calendar. The mistake by which it got on Judge McKinley\u2019s calendar was made by reason of the failure of Judge Fitch\u2019s minute clerk to enter of record the order of Judge Fitch reinstating the case. If the order of reinstatement had been enter.ed of record the case would never have been put on Judge McKinley\u2019s calendar, for the clerk\" of the superior court would then have had notice that the case was still on Judge Fitch\u2019s calendar. Although the order was not essential to the validity of the reinstatement of the case, the absence of it caused the confusion in regard to the ease. Appellee should not be made to suffer because by mistake the calendars were made up in such a manner that the case appeared on two calendars on the same day. We are of the opinion that if Judge McKinley had known the facts in regard to the status of the case on Judge Fitch\u2019s calendar, he would, as a matter of law, have been precluded from dismissing the case.\nCounsel for appellants contend that the error of fact was not unknown to Judge McKinley as he is presumed to have had the entire record of the case before him. The error of fact was not one appearing on the face of the record and the presumption that Judge McKinley knew it from the record cannot be indulged.\nIt is further maintained by counsel for appellants that appellee by contending that the case was not properly on Judge McKinley\u2019s calendar seeks to contradict the record \u201cwith reference to the finding of the very judgment sought to be reversed.\u201d Counsel argues as follows: \u201cThe judgment order sought to be reversed recites that the case was called for trial, and this was a finding that the case was then subject to trial, which means that Judge McKinley found that the case had properly been placed on a special calendar.\u201d Counsel reach their conclusion only by inference. The judgment order of Judge McKinley does not find in terms that \u201cthe case had properly been placed on a special calendar\u201d; and we do not agree with counsel that the recital in the order that the case was \u201ccalled for trial\u201d justifies the inference \u201cthat Judge McKinley found that the case had properly been placed on a special calendar.\u201d\nCounsel for appellants contend that appellee was negligent in not attending the call of the case before Judge McKinley. The record shows that neither party attended that call. Appellee\u2019s failure to attend that call does not indicate that he was neglecting or abandoning his case, as he attended the call before Judge Fitch. \u201cWe must take judicial notice that a number of courts of original jurisdiction are held in the City of Chicago in as many different rooms, and as they may all be in session at the same time, much difficulty may be experienced by counsel having business in the various courts.\u201d Hearson v. Graudine, 87 Ill. 115, 117. We are of the opinion that appellee was not guilty of negligence.\nIt is further contended by counsel for appellants that appellee was negligent in not making his motion under section 89 until nearly three years after the dismissal of the case by Judge McKinley, and that he was guilty of laches and unreasonable delay. Counsel cite authorities which announce the rule that diligence is required in motions generally to set aside judgments, and argue that the rule should apply by analogy to the present motion in the nature of a writ of error coram nobis. In none of the authorities cited by counsel, however, do we find that it has been held that the five years allowed by section 89 within which to file the motion may be abridged by reason of laches or by delay in filing the motion. We presume that if the legislature had intended that the time might be shortened by laches or by delay the statute would have contained a provision to that effect. The statute is not ambiguous in its meaning and requires no construction. It states plainly that the motion may be \u201cmade at any time within five years after the rendition of final judgment in the case.\u201d Appellee is within the time, and we know of no rule or reason why the time prescribed in the statute should be curtailed.\nAppellee explains his delay in making the present motion by stating that when he found within a month after the fall of 1918 that the original action had been dismissed by Judge McKinley, he mistook his remedy and began a new action. A new action, however, could not be brought, as the case was one of an alleged wrongful death, and the time had expired, the original action having been begun in 1915. \u201cThe essence of laches is not merely lapse of time. It is essential there be also acquiescence in the alleged wrong or lack of diligence in seeking a remedy. * * * Nor does failure, long continued, to discover the appropriate remedy, though well known, establish laches where there has been due diligence.\u201d Southern Pac. Co. v. Bogert, 250 U. S. 483, 488, 489, 490. We do not think that the facts show acquiescence on the part of appellee in the alleged wrong or lack of diligence in seeking a remedy.\nCounsel for appellants assign as error that the motion of appellee in the case at bar is insufficient for the following reasons: (1) That \u201cno allegation whatever is made that plaintiff had a meritorious cause of action in the original action.\u201d (2) That \u201cno facts are alleged setting forth freedom from negligence on the part of the plaintiff.\u201d (3) That \u201cthe motion makes no showing whatever that this case was improperly called and dismissed by Judge McKinley.\u201d (4) That \u201cno error of fact on the part of anyone is disclosed by the amended motion.\u201d\nThe filing of the motion by appellee was the commencement of a new suit, and the motion stands in place of a declaration. Smyth v. Fargo, 307 Ill. 300, 304. Appellants demurred to the motion, and the demurrer was overruled. Appellants then filed a plea to the motion. By thus pleading appellants waived all objections to the sufficiency of the motion except the objection that the motion is so defective that it will not sustain the judgment. Pittsburgh, C., C. & St. L. Ry. Co. v. Robson, 204 Ill. 254, 265. If the motion does not state a cause of action it may be objected to on appeal on that ground even though the demurrer was overruled and the plea was filed to the merits. Gillman v. Chicago Rys. Co., 268 Ill. 305, 310. Appellants moved in arrest of judgment, but appellants could not again urge on that motion that the declaration was obnoxious to the demurrer. Chicago, R. I. & P. Ry. Co. v. People, 217 Ill. 165, 172. As the question of the sufficiency of the motion of appellee is not presented to this court by way of demurrer, all legitimate and reasonable presumptions and intendments will be indulged in support of the motion. N. K. Fairbank Co. v. Bahre, 213 Ill. 636, 638; O\u2019Rourke v. Sproul, 241 Ill. 576, 579, 580; Wagner v. Chicago, R. I. & P. Ry. Co., 277 Ill. 114, 119.\nIn regard to the first contention of counsel, we are of the opinion that it is not necessary for the motion to allege that appellee has a meritorious cause of action. The question of the merits of the original action is immaterial and is not involved in the present proceeding. Allegations which show that an error of fact has been committed are essential. The fact that appellee may have had a meritorious cause of action would not constitute an error of fact which would justify the motion. If appellee had alleged in his motion that he had a meritorious cause of action the allegation would have been superfluous and immaterial in the case of Chapman v. North American Life Ins. Co., supra, appellant contended (p. 188) that the affidavits in support of its motion in the nature of a writ of error coram nobis showed that it had \u201ca complete defense to appellee\u2019s action that it was prevented from making.\u201d The court said \u201cthat may be conceded,\u201d but that such an allegation does not amount to \u201cany error of fact of which appellant can avail itself under this motion. \u2019 \u2019\nWe are of the opinion that the other objections urged by counsel for appellants as to the sufficiency of the allegations in the motion are not well taken. In this connection it should be stated that a stipulation of facts was entered into by the parties in the present case. The legal effect of the stipulation of facts was to incorporate into the pleadings all of the facts agreed upon; and any fact stipulated upon, although not contained in the motion, was by the legal effect of the stipulation incorporated into the motion in proper form as one of the allegations. Kurtz v. Graybill, 192 Ill. 445, 450; Tarrant v. Burch, 102 Ill. App. 393, 396.\nIt is further contended by counsel for appellants that the trial court erred in admitting incompetent evidence. The evidence complained of is the oral testimony given in behalf of appellee explaining how the original action was reinstated by Judge Fitch on the motion of appellee, and the evidence relating to the action taken by Judge Fitch after June 17, 1918. Counsel state in their brief that \"manifestly the decision\u201d of the trial court \"was based on this incompetent evidence.\u201d We have not considered the evidence in question at all in reaching our conclusions. In our opinion Judge Fitch could have reinstated the case on his own motion and no written order of record of the reinstatement was necessary. It was not essential for appellee to make the motion for reinstatement, and the evidence in that respect is immaterial. Proof that the case was actually reinstated is all that was necessary and that proof was made and is not disputed. In our view of the case it was not necessary to consider the evidence relating to the action taken by Judge Fitch after June 17, 1918.\nThe final objection of counsel for appellants is that appellee did not file a replication to appellants\u2019 plea. Appellee filed a demurrer to appellants\u2019 plea. The demurrer was overruled but no replication was filed. Counsel for appellants maintain that in this situation of the pleadings appellee must be regarded as ' \u2018 standing by his demurrer,\u201d and that appellants are entitled to judgment. A complete answer to the objection is that the parties proceeded to trial without the formal joinder of issue. Most of the facts were agreed on by oral stipulations in open court, and on the issues which remained in dispute appellee offered testimony. The agreement of facts was entered into voluntarily by the parties on the suggestion of the trial court. The following colloquy took place between the court and counsel:\n\u2018 \u2018 The Court : Aside from the pleadings, let us get the facts. All facts may be proven as though properly pleaded. Let us get an agreement here on the facts.\n\u2018 \u2018 Counsel eor Appellee : Agreement on what, your Honor?\n\u201cThe Court: All facts may be proven as though they were sufficiently pleaded.\n\u201cCounsel eor Appellants: That is agreeable to me.\n\u201cThe Court: Just show what the facts are, so when the case goes up you will have no trouble about pleadings or anything of that kind; let the upper courts decide that from the facts.\n\u2018 \u2018 Counsel eor Appellants : Do you want the stipulation?\n\u201cThe Court: You may make that stipulation in open court if you want to. All facts may be proven as though properly pleaded. What do you say to that? Now, then, gentlemen, what do you say to the stipulation, is that all right?\n\u201cCounsel eor Appellants: That is agreeable to me, that all competent facts may be proven as though they were properly pleaded.\u201d\nIn view of this state of the record we are of the opinion that appellants have waived the right to object that because of appellee\u2019s failure to file a replication the issues were not joined. The rule is well established that if the parties proceed to trial without joinder of issue the omission is waived. Guerin v. Guerin, 270 Ill. 239; Piot v. Davis, 241 Ill. 434; Smith v. Bellrose, 200 Ill. App. 368. In Guerin v. Guerin, supra, the court said (p. 244): \u201cBy their active participation in the trial of the cause and until its conclusion, we are of opinion the appellants waived their right to file replications or to afterwards insist the cause was not at issue.\u201d\nFor the reasons stated in the opinion the order of the trial court granting appellee\u2019s motion in the nature of a writ of error coram nobis is affirmed.\nAffirmed.\nHatchett, P. J., and HcSubely, J., concur.",
        "type": "majority",
        "author": "Mr. Justice Johnston"
      }
    ],
    "attorneys": [
      "Charles LeBoy Brown, for appellants; John B. Guilliams, Frank L. Kriete and Bobert J. Slater, of counsel.",
      "John Clark Baker, for appellee."
    ],
    "corrections": "",
    "head_matter": "Leonard C. Reid, Administrator of the Estate of E. Bittner, for use of Fitzpatrick Brothers, Appellee, v. Chicago Railways Company and Chicago City Railway Company, Appellants.\nGen. No. 28,105.\n1. Judgments \u2014 writ coram nobis not available to vacate dismissal of statutory action. A motion in the nature of a writ of error coram nobis is not available to vacate the order of dismissal of a statutory action.\n2. Death by wrongful act \u2014 action under Injuries Act not statutory proceeding. The Injuries Act creates no proceedings independent of the common law but only new rights which are to be enforced according to the common law, and an action brought by virtue of that act is not a statutory proceeding within the rule that the writ of error coram nobis is not available in statutory proceedings.\n3. Workmen\u2019s compensation \u2014 action for use of employer under section 29, not statutory proceeding. An original action in trespass on the case for damages for the death of an employee brought by an administrator for the use of the employer is not a statutory proceeding within the rule that the writ .of error coram nobis is not available in statutory proceedings, even though the action is brought under the Workmen\u2019s Compensation Act, sec. 29, Cahill\u2019s Ill. St. ch. 48, 1i 229, since the right of action in the employer, given in section 29, is not a new cause of action but the employee\u2019s right of action transferred to his employer and enforceable according to common-law procedure.\n4. Judgments \u2014 limitation of time for motion for writ coram nobis in action under Injuries Act. The fact that an action for damages for wrongful death under the Injuries Act must be brought within one year does not except it from the operation of a motion for the writ in the nature of coram nobis provided for in Practice Act, sec. 89, Cahill\u2019s III. St. ch. 110, f 89, for the correction of errors of fact in the court in which such error was committed, upon motion in writing within five years.\n5. Death by wrongful act \u2014 action as one at common law within meaning of Practice Act. An original action in trespass on the case for damages for wrongful death, brought by an administrator for his own use as administrator and for the use of decedent\u2019s employer, under the Injuries Act and the Workmen\u2019s Compensation Act, sec. 29, Cahill\u2019s Ill. St. ch. 48, 229, although brought\nfor the enforcement of statutory rights, is a common-law proceeding within the meaning of the provisions of Practice Act, sec. 89, Cahill\u2019s Ill. St. ch. 110, T 89, abolishing the writ coram nobis and authorizing the corrections of errors of fact by writ of error in the nature of coram nobis on written motion in the court in which such error was committed.\n6. Judgments \u2014 scope of writ coram nobis under Practice Act. The fact that the scope of the. writ of error has been defined by Practice Act, sec. 91, Cahill\u2019s I1L St. ch. 110, If 91, but not extended to include purely statutory proceedings, and that the scope of the motion under section 89, Cahill\u2019s Ill. St. ch. 110, jf 89, in the nature of coram nobis is limited to its common-law scope, does not make the latter writ inapplicable to an original action in trespass on the case under the Injuries Act.\n7. Calendar \u2014 when stricken case properly placed on trial calendar by clerk. No error of fact was committed by the clerk of superior court in placing on the calendar of one judge an action which had been stricken from the calendar of the judge to whom it was originally assigned and who had reinstated it without the order of reinstatement being entered of record, where the clerk acted pursuant to an order of the judge on whose calendar he placed the cause to prepare a calendar of all common-law cases stricken from the present calendar, continued generally, and passed on notice prior to a specified date, although the cause was' also on the calendar of the judge to whom it had been assigned for call on the same date as before the other judge.\n8. Calendar \u2014 reinstatement of cause on calendar not a judicial act. Reinstatement on the trial calendar of a cause, pursuant to a verbal order to his minute clerk by the judge to whom the case had originally been assigned and who had caused it to be continued generally, is a ministerial and not a judicial act, and the cause is properly on such judge\u2019s calendar after such reinstatement, even though no entry of the order of reinstatement was made of record, and the placing of such cause on the calendar of another judge, pursuant to a general order made by him to prepare a calendar, of all causes stricken, continued generally or passed on notice prior to a certain date, did not properly place the cause on such latter judge\u2019s calendar although the entry thereon was due to the want of any record of the order of reinstatement.\n9. Judgments \u2014 dismissal of cause as error of fact correctable by writ coram nobis. Dismissal of a cause, for want of prosecution, by a judge upon whose calendar it had been placed by error resulting from the failure to enter of record an order reinstating the cause on the calendar of the judge to whom it had originally been assigned, of which order of reinstatement the dismissing judge was ignorant, constitutes an error of fact within the meaning of Practice Act, sec. 89, Cahill\u2019s III. St. ch. 48, j[ 89, which may be corrected by the writ provided for in that section, where it appears that the cause was on the calendar of the judge to whom it had been originally assigned, for call on the day of dismissal, and that the attorneys for the parties were then present, of which facts the dismissing judge was ignorant.\n10. Judgments \u2014 when no presumption in favor of incomplete record. The presumption that a judge, when he dismissed a cause for want of prosecution, had the entire record of the cause before him and that he acted with knowledge that such cause had been reinstated on the calendar of the judge to whom it had been originally assigned, cannot be indulged to sustain such dismissal as against a writ in the nature of coram nobis under Practice Act, sec. 89, Cahill\u2019s Ill. St. ch. 48, If 89, where the record is incomplete and does not show the order of reinstatement which had been properly made but not entered of record.\n11. Judgments \u2014 when record not contradicted on motion to vacate for error of fact. Recital in a judgment of dismissal for want of prosecution that the cause was called for trial is not inferentially equivalent to a finding that the cause had properly been placed on a special calendar which may not be contradicted on a motion under Practice Act, sec. 89, Cahill\u2019s Ill. St. ch. 48, 1f 89, to vacate the judgment for error of fact by a showing that cause was not properly on the dismissing judge\u2019s calendar but was properly on the calendar of another judge under order of reinstatement made orally but not entered of record.\n12. Judgments \u2014 when failure of attorney to attend call of calendar not negligence barring vacation of dismissal for want of prosecution. Failure of attorneys for plaintiff to attend the call of the calendar of a certain judge which resulted in dismissal of the cause for want of prosecution is not such negligence as bars vacation of the judgment for error of fact on motion under Practice Act, sec. 89, Cahill\u2019s Ill. St. ch. 48, If 89, where it appears that the cause was improperly on the calendar of such judge and was on the calendar of another judge, to whom the cause had been originally assigned, for call on the same day, and that the attorneys were present before such latter judge, and that the attorneys for both parties were absent at the call of the first judge\u2019s calendar.\n13. Judgments \u2014 effect delay for less than statutory period in, moving for vacation. Delay of three years after dismissal of a cause for want of prosecution in moving under Practice Act, sec. 89, Cahill\u2019s Ill. St. ch. 48, 1f 89, to vacate the judgment of dismissal, is not laches barring the right to such relief, in view of the statutory period of five years for seeking such relief, especially where it appears that the party acted diligently in seeking relief but mistook the remedy.\n14. Pleading \u2014 plea to motion to vacate judgment as waiver of defects. Insufficiency of a motion under Practice Act, sec. 89, Cahill\u2019s Ill. St. ch. 48, If 89, for a writ in. the nature of coram nobis to vacate a judgment for error of fact is waived by the filing of a plea to the motion after overruling of a demurrer thereto, except the objection that the motion is so defective that it will not sustain judgment thereon.\n15. Pleading \u2014 when insufficiency of declaration not raised by motion in arrest of judgment. On motion for arrest of a judgment vacating a judgment of dismissal, entered in a proceeding under Practice Act, sec. 89, Cahill\u2019s Ill. St. ch. 48, If 89, for a writ in the nature of coram nobis, the objection that the motion for the writ was obnoxious to a demurrer previously filed and overruled could not be raised.\n16. Appeal and error \u2014 presumption on appeal as to legal sufficiency of motion. All legitimate and reasonable presumptions and intendments will be indulged in support of the sufficiency of a motion under Practice Act, sec. 89, Cahill\u2019s Ill. St. ch. 48, If 89, to vacate a judgment of dismissal, on appeal from a judgment vacating the previous judgment, where the sufficiency of the motion is not presented to the Appellate Court by demurrer.\n17. Judgments \u2014 allegation of merits not requisite on motion to vacate dismissal. No allegation that the plaintiff, in an action which was dismissed for want of prosecution, had therein a meritorious cause of action, is necessary to the sufficiency of a motion under Practice Act, sec. 89, Cahill\u2019s Ill. St. ch. 48, If 89, by such plaintiff to vacate the judgment of dismissal.\n18. Stipulations \u2014 implied incorporation of facts stipulated into pleadings. The legal effect of a stipulation of facts entered into by the parties in a proceeding under Practice Act, sec. 89, Cahill\u2019s Ill. St. ch. 48, 1i 89, for the vacation of a judgment of dismissal for want of prosecution, entered on error of fact, is to incorporate the facts stipulated into the pleadings as an allegation thereof.\n19. Harmless error \u2014 admission of evidence not necessary to decision not reversible error. Alleged error in the admission of evidence on a motion under Practice Act, sec. 89, Cahill\u2019s Ill. St. ch. 48, 1[ 89, to vacate a judgment for error of fact, was harmless where such evidence was wholly immaterial and unnecessary to the decision of the court on the motion.\n20. Pleading \u2014 proceeding to trial without formal joinder of issues as waiver of failure to file replication. Failure of plaintiff to file a replication to defendant\u2019s plea to a motion for a writ in the nature of coram nobis, under Practice Act, sec. 89, Cahill\u2019s Ill.\nSt. ch. 48, | 89, after the overruling of plaintiff\u2019s demurrer to such plea, was waived where the parties thereupon proceeded to trial without formal joinder of issue under a stipulation of facts entered into voluntarily in open court.\nAppeal by defendants from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1923.\nAffirmed.\nOpinion filed December 10, 1923.\nCharles LeBoy Brown, for appellants; John B. Guilliams, Frank L. Kriete and Bobert J. Slater, of counsel.\nJohn Clark Baker, for appellee."
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  "file_name": "0058-01",
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