dissenting :
I can not concur in the ruling upon which this case is decided. As I understand the record, the law case had been dismissed for want of prosecution before the chancery case was re-docketed in the circuit court under the mandate of this court.
Thereupon, a stipulation dated February 18, 1878, signed by counsel for the respective parties, was filed in the chancery cause, by which it was agreed “ that the issues now pending in a certain cause entitled as above in the above court, on the common law side thereof, shall be tried in the above entitled cause on the chancery side thereof, subject to the approval of the chancellor.”
On the 19th of the same month, a stipulation was filed in the law case, signed by the respective attorneys on the 18th of the same month, by which it was agreed, as to that cause, that it “may be reinstated on the docket and the said suit.proceed as if the same had remained continuously upon the docket, the same to be tried upon the merits, according to a stipulation filed in a cause pending on the chancery side of said court, between the same parties.”
At this time there was no pleading in the law case except the plaintiffs’ declaration and a demurrer thereto. The demurrer had been overruled, and, after that, on May 11, 1877, that case had been dismissed for want of prosecution.
What is the fair meaning of these stipulations, when read together?
The stipulation in the law case is, that the case shall be reinstated and proceed as though the order of dismissal had not been made, “ the sanie to be tried upon its merits according to the stipulation filed ” in the chancery cause, that, is, “ the issues ” in the law case, “ shall be tried ” in the chaneery case, “on the chancery side thereof, subject to the approval of the chancellor.”
Can it be said that this is an agreement to submit the trial of the issues to the law court, without a jury, as provided in our act regulating trials in law cases? It seems to me this is not the meaning of the parties. On the contrary, the issues are to be tried “on the chancery side” of the court, and in the chancery suit, and all this “subject to the approval of the chancellor.” The Supreme Court had said in this chancery case, (86 111. 270), “ the court of law was the proper forum for the adjudication of the fact and amount of indebtedness, and it should have been left to that court to determine the same.” The defendants, however, were now willing to waive their right to a trial in the law court, and to submit the issue of indebtedness to the chancellor, but the chancellor, under the decision in 86 111. supra, might not be willing to try that question, and might say to the parties, settle the question of indebtedness at law, as suggested by the Supreme Court, and I will stay the execution on the old judgment of the defendants, until that question is settled in a court of law, and then decree accordingly. For this reason plainly this whole agreement was made “ subject to the approval of the chancellor.” Had this agreement been simply an agreement to submit the issues to the law court, without a jury, to be tried at the same time the chancery cause should be tried, there would have been no need of saying, “subject to the approval of the chancellor.” Had that been the agreement, it would have required the consent of the law court, as well as the chancellor, to have both trials going on at the same time. In Cook county, where there are five circuit judges, the law courts and the chancery courts are not usually held by the same judge at the same time.
If the agreement was not that the issue, the fact and amount of indebtedness, should be tried in chancery, why was it that the chancellor proceeded to hear, in the chancery cause, all the evidence relating to these issues ? The conduct of the parties, the course of the proofs on the hearing, and the decree of the court, all show that the parties understood by these agreements, these issues Avere to be tried in chancery. The certificate of evidence is drawn in the chancery cause, setting out all the proofs. The decree of the court and its recitals show this. The decree says the cause Avas heard January 21,1880, on “ pleadings and proofs taken therein and oral testimony given in open court, and counsel having been heard, it is adjudged and decreed that the equities are with respondents, that the temporary injunction be dissolved, with leave to the. defendant company to file suggestion of damages, and that the bill be dismissed.” The decree then recites, that it appeared to the court that the law case (mentioned in the stipulations) was pending, and that the parties entered into the stipulations of February 18,1878, “ whereby the parties stipulated that the issues in said law action should be tried and determined in this cause, * * * which said cause Avas so heard in accordance Avith said stipulation”—and it further appearing to the court * * * that the defendant is not indebted to complainants as alleged in the declaration in the law case, * * * it is, therefore, ordered and decreed that the respondent railroad company recover costs in this (chancery suit).
Here is a finding by the chancellor as such, that defendant is not indebted, and nothing is said about such finding being founded upon a judgment in the law case, but the decree is placed expressly upon the proofs, before that time taken, and upon oral evidence and upon the stipulations, Avhich, up to this time, were construed to mean exactly Avhat I contend they do mean.
The chancellor had jurisdiction as such to try the question of indebtedness. The indebtedness Avas alleged in the bill and denied in the answer, and, although the defendant might have refused to have had that issue tried in chancery, it agreed it should be, and it in fact was.
If tried on the chancery side, the trial, as to mode, must be according to the rules of proceeding in chancery, and not by the rules of law relating to cases in the circuit court as a law court.
If the finding in the chancery cause of the facts, had been produced in the law court after the decree, it may be the law court might, on motion, have entered judgment for defendant. That, however, would not preclude this court from reviewing the evidence on which the decree was rendered. That decree is before us, and all the evidence given.
The certificate of evidence, as I understand the transcript, does not show that the judgment in the law case was offered in evidence on the hearing in chancery. That certificate does show, as the decree indicates, that the pleadings in the law case were given in evidence at the hearing of the chancery cause, and also the stipulations of February 18, 1878. There appears, in addition to this, to be injected into that part of the transcript what seems to be a transcript of the other parts of the record in the law case, embracing proceedings of January 21, 1880, (the same day of the hearing of the chancery cause), showing, that by virtue of the stipulation of February 18, 1878, the law court held that the issue in the law case was submitted to the law court for trial, and reciting a trial thereof by the court, a finding for defendant, and judgment on the finding for costs, an appeal prayed and allowed; also an order of the law court of February 9, 1880, giving further time for bill of exceptions, and also a copy of an appeal bond, filed February 11, 1880, in the law case. This certificate of evidence is dated January 30, 1880. It is impossible that on January 30, 1880, the judge of the court could certify, as evidence heard at a hearing January 21 1880, a copy of an order made February 9,1880, or the copy of an appeal bond made February 11, 1880.
To determine, therefore, what of the matter contained in the transcript was given in evidence at the hearing, we must confine ourselves to that which is therein stated to have been so given in evidence. There is no such statement in relation to the judgment in the law case, or as to the order of February 9, 1880, or as to the appeal bond of February 11, 1880.
After a careful examination of the transcript, it seems plain to me, that after this decree in chancery was entered, but on the same day, the court took up the law case against the objection of plaintiff, and against his objection gave leave to defendant to file a plea of general issue in the law case, nuno pro tuno, as of the 18th of February, 1878, and thereupon by virtue of the stipulation of February 18,1878, construing it as an agreement to waive a jury and submit the issue to the court on the law side for trial without a jury, against the objection of appellants, proceeded, upon consideration of the evidence heard in the chancery cause, to find the issues in the law case for defendant, and to render judgment on this finding, and from this judgment plaintiff also appealed.
I think the decree in chancery is subject to review here, and the evidence on which it rests, and that the judgment at law should cut no figure in the examination of the proceedings in the chancery cause. I am convinced, from this record, that the judgment, in fact, rests upon the finding in chancery, and the finding in chancery does not rest upon the judgment at law.
There are two appeals,—one, from the judgment at law. That judgment was affirmed by the Appellate Court. It ought to have been reversed, as I think, for irregularity. I think it was error in the circuit court, on the law side, to assume to try the issues upon evidence, without a jury, with no other warrant than the stipulation in the record. The merits of this controversy, as shown by the evidence in the chancery case, this court refuses to examine. I think they ought to be considered and determined by this court.