delivered the opinion of the Court:
This was an action in the circuit court of Cook county, on a policy of fire insurance. The issues were tried, by agreement of parties, by the court, without the intervention of a jury, and judgment was rendered for the defendant. The plaintiff appealed to the Appellate Court for the First District, and that court reversed the judgment of the circuit court, and rendered final judgment for the plaintiff. This appeal is from that judgment.
Appellant contends that the judgment is void, because the court had no authority to render a final judgment contrary to the finding of the court acting in the place of the jury. It is provided by section 81 of the amended Practice act, (2 Starr & Curtis, chap. 110,) that “in all cases of appeal and writ of error, the Supreme Court or Appellate Court may give final judgment and issue execution.” It is not denied that this language is broad enough to justify the judgment as rendered, but it is contended that it can not have been intended by the General Assembly to authorize final judgment to be rendered contrary to the verdict of the jury, because that would be to deny to the party the right of trial by jury, as guaranteed by section 5, article 2, of the present constitution. But that guaranty is simply of the right of trial by jury as it was enjoyed at the adoption of the constitution. Pryor v. Irving, 14 Ill. 171.
The question of fact, when there is in the evidence a real controversy of fact, must be tried by the jury, but it is for the court to say whether evidence offered is pertinent to the issue, and also whether there is sufficient evidence before the jury to present an issue of fact, under the pleadings, and if there shall not be, to direct what verdict shall be returned. Bartelott v. International Bank, 119 Ill. 259; Lake Shore and Michigan Southern Railway Co. v. O'Conner, 115 id. 254; Simmons v. Chicago and Tomah Railroad Co. 110 id. 340; Frazer v. Howe et al. 106 id. 563; Randall v. Baltimore and Ohio Railroad Co. 109 U. S. 478; Herbert v. Butler, 97 id. 319. And so, if the jury were to find for the defendant, when the evidence given at the trial, with all the inferences that they could justifiably draw from it, is so insufficient to support their verdict that the court would have been warranted in directing them to find for the plaintiff, but failed to do so, an appellate court, in rendering the judgment that should have been rendered in the circuit court, no more invades their province than would the circuit court, under those circumstances, had it directed what verdict the jury should return. As we said in Frazer v. Howe et al. supra, as to the function of the judge in the trial court, it is not within the province of the judge to weigh the evidence, and ascertain where the preponderance is. His function is limited strictly to' determining whether there is or is not evidence legally tending to prove the fact affirmed,—evidence from which, if credited, it may reasonably be inferred, in legal contemplation, the fact affirmed exists, laying entirely out of view the effect of all modifying or countervailing evidence. So we say in regard to the appellate tribunal. That power, in this respect, which the trial court could and should have exercised on the trial, the Appellate Court may exercise on appeal; and in order that the Appellate Court may not arrogate to itself the exercise of arbitrary or capricious power in this way, it is provided by section 87 of the present Practice act, (2 Starr & Curtis, chap. 110,) that “if any final determination of any cause, as specified in the preceding sections, shall be made by the Appellate Court, as the result, wholly or in part, of the finding of facts concerning the matter in controversy, different from the finding of the court from which such cause was brought by appeal or writ of error, it shall be the duty of such Appellate Court to recite, in its final order, judgment or decree, the facts as found, and the judgment of the Appellate Court shall be final and conclusive as to all matters of fact in controversy in such cause.” Necessarily, therefore, if it shall appear, upon the facts recited, that the law has been improperly applied by the Appellate Court, either in the respect we have just considered, or in any other respect materially affecting the judgment rendered, it will he the duty of this court to reverse the judgment, but otherwise it should be affirmed.
But the question still remains, does the recital of facts in this record conform to the statute ? It is obvious that the facts recited should include the facts concerning every material issue submitted to the trial court, otherwise a judgment might be rendered for the plaintiff by the Appellate Court on one issue, while on an issue not considered by that court the trial court decided, and properly so, in favor of the defendant-. We may look to the record to see what were the issues in "the case, and whether there was any evidence tending to prove them. Bank of Montreal v. Page, 98 Ill. 109.
On looking into this record, we find that it was contested, on the trial, first, whether the property insured had been sold under a certain mortgage, so as to effect a change of title, in violation of one of the clauses of the policy; second, whether the notice and proofs of loss were sufficient, and served in apt time; third, whether a policy of insurance, upon the same property and for the same amount, issued by the defendant to one Babcock, subsequent to the issuing of the policy upon which this suit is brought, and the loss upon which was fully paid before this suit was brought, was issued in lieu of the policy upon which this suit is brought, with the consent of Scammon.
We think it too plain for argument, that if the latter question should be answered in the affirmative, the policy upon which suit is brought was extinguished, and there can be no recovery upon it. We can not know that the circuit court did not render its judgment upon that finding of fact, and if so, the ruling of the Appellate Court upon the questions discussed by it is inconclusive. Nor are we allowed to look into the record and find for ourselves what the facts were upon that question, and determine therefrom how the Appellate Court should have found. Since the present-record only certifies the facts found as to the first two issues, it is insufficient, and the judgment should be reversed, and the cause remanded with direction to the Appellate Court to render a judgment de novo,- and if that court shall still be of opinion that on the record before it the judgment of the circuit court should be reversed and final judgment should be rendered in that court for the plaintiff, that such judgment be rendered, and that the facts found upon which their judgment is predicated, as respects all the questions contested in the circuit court, be certified. This conforms to what we held in Fitzsimmons v. Cassell, 98 Ill. 332, and what we believe to be the proper practice.
The judgment is reversed, and the cause remanded to the Appellate Court for the First District for further proceedings in conformity with this opinion, and leave is given to withdraw the record of the circuit court filed in this court, for the purpose of refiling it in the Appellate Court.
Judgment reversed.