delivered the opinion of the court:
Plaintiff in error brought suit in the superior court of Cook county against defendant in error to recover damages for a personal injury alleged to have been caused by the negligence of the defendant. At the close of all the evidence offered on the trial the court instructed the jury to find the defendant not guilty. The jury so found, and judgment was rendered against the plaintiff for costs. On appeal the Appellate Court affirmed the judgment and denied plaintiff’s motion for an appeal and for a certificate of importance. Thereupon the plaintiff sued out this writ of error to the Appellate Court to bring the record here for review.
The defendant in error has moved this court to dismiss the writ of error on the ground that this court has no jurisdiction to correct the alleged errors supposed to have been committed below. This motion having been reserved will now be disposed of, and from the view we take of the question it must result in the final disposition of the case in this court.
By an amendatory act the legislature, in 1887, (Laws of 1887, p. 156,) added to section 8 of the Appellate Court act (Hurd’s Stat. 1889, p. 415,) this proviso: “And provided further, that in all actions where there was no trial on an issue of fact in the lower court, appeals and writs of error shall lie from the Appellate Courts to the Supreme Court where the amount claimed in the pleadings exceed one thousand dollars ($1000).” Prior to this amendment we held that in such cases, where the judgment was in favor of the defendant, this court had no jurisdiction to review the record on appeal or writ of error without a certificate of importance granted by the Appellate Court. {Smith v. Harris, 113 Ill. 136; Baxtrom v. Chicago and Northwestern Railway Co. 117 id. 150; Fitzpatrick v. Chicago and Western Indiana Railroad Co. 139 id. 248.) The case last cited was decided after the amendment was added to the statute, but it was held that, inasmuch" as there was “a trial on issue of fact in the lower court,” the case did not fall within said amendment or proviso, and that we could not look to the pleadings to determine the amount in controversy. It does not appear, however, in that case, that the jury returned a verdict for the defendant in obedience to a peremptory instruction given by the court.
But the precise question involved here was decided by this court in Fisher v. Nubian Iron Enamel Co. 163 Ill. 387. In that case the action was one sounding in damages, and the amount claimed in the declaration exceeded $1000. The general issue was filed, and the parties went to trial on such issue before the court and a jury. At the close of the evidence for the plaintiff the court, on motion of the defendant, instructed the jury to find the issue for the defendant, and the jury, following the instruction, so found and returned the verdict. Judgment for costs was rendered against the plaintiff and the Appellate Court affirmed the judgment. The plaintiff appealed to this court without having obtained a certificate of importance, and we dismissed the appeal because the case did not fall within the proviso above set out, and the judgment being for less than $1000, no appeal lay to this court. We said in that case: “That there was a trial on an issue of fact is too clear for argument. All that can be said is that that trial resulted in a finding" against the plaintiff because of a peremptory instruction of the court, rather than from general instructions as to the law of the case.”
Plaintiff in error concedes that if that decision be adhered to it is decisive of the case at bar, but he insists most earnestly that the Fisher case was decided incorrectly and ought to be overruled, because, as he contends, “there was no trial on an issue of fact in the lower court,” and the damages claimed in the declaration being in excess of $1000, this court has jurisdiction on appeal or writ of error, under said proviso, without a certificate of importance. We had not supposed that there was room for serious differences of opinion on the question even before the decision in the Fisher case, and that after that case was decided it would be accepted as a final disposition of the question. But as counsel contends here, with great earnestness and ability, that there was no trial in the Fisher case nor in the case at bar on an issue of fact in the lower court, but only on an issue of law, and that the result of our decisions is to deprive the plaintiff in such a case of the right of trial by jury, we have thought it proper to re-examine the question, and, so far as necessary, the grounds upon which the decision in the Fisher case rests.
It is not contended by counsel that the cases decided before the Fisher case (some of which are cited above) were decided erroneously, but it is insisted that the proviso in question was added to cure the defect in the statute, which, before its amendment, left the plaintiff without the right of appeal to this court where a final judgment for costs rendered against him in the trial court had been affirmed in the Appellate Court, although, if entitled to recover at all, he would be entitled to recover a much larger amount than $1000. In the Fitzpatrick case, supra, it was said (p. 250): “We must, in view of our former decisions and of this subsequent legislative action, regard the question of the construction of the language of the statute as no longer an open one.” Inasmuch, however, as it does not appear that the jury was instructed in that case to return a verdict for the defendant, it may be considered as falling somewhat short of the precise question decided in the Fisher case and raised in the case at bar. Still, no material difference as to the question we are considering can be perceived between a case in which, after the evidence has been heard, the jury finds a verdiet for the defendant because of general instructions given by the court as to the law of the case, and one in which, because of the legal insufficiency of the evidence, the jury finds for the defendant because the court instructs it to do so. In both cases the defendant obtains the verdict because of a decision of a question of law by the court, and in both cases there is “a trial on an issue of fact.” In the case at bar a plea of not guilty was filed and the parties went to trial on the issue of fact thus made and all the evidence on both sides was heard. Surely it cannot be said that they were not then engaged - in a trial on an issue of fact.
But it is said that the motion to instruct the jury to find for the defendant raised a question of law precisely as a demurrer to the evidence would have done, and that this question, or issue of law, was submitted to the court for decision. This is certainly true; but while the trial is proceeding on an issue of fact there maybe many questions of law raised and submitted to the court for decision, and which may have a more or less decisive effect on the final result, and still the trial is had on an issue of fact,—that is, on the issue of fact joined by the pleadings. Had either party raised an issue of law by demurring to the pleading of his adversary and submitted the case to the court for final decision on the issue of law so raised, there would not have been a trial on an issue of fact but on an issue of law only, and the pleadings upon which the trial was had would, under the proviso, have determined the' amount involved in the suit. But in the case at bar the trial was not upon the sufficiency of the pleadings but on the sufficiency of the evidence heard on an issue of fact. The mere fact that after the evidence was heard the question became one of the legal sufficiency of the evidence to maintain the action, instead of one involving the preponderance or weight of the evidence, would not affect the proposition that there was a trial on an issue of fact. In the former case the jury finds for the defendant because the court instructs it that the evidence is legally insufficient to maintain the plaintiff’s action, and in the latter, because the court instructs it that the burden of proof is on the plaintiff to prove his cause of action by the greater weight or by a preponderanee of the evidence, and the jury finds there is no such preponderance in favor of the plaintiff. Illustration can hardly make the proposition clearer; but let it be supposed that the action is one requiring proof of a demand made by the plaintiff before he can recover, and the proof, otherwise complete, fails to show such a demand, or is one where the plaintiff fails to prove some other fact legally necessary to sustain a judgment in his favor, and he persists in submitting his case to the jury, the court would be authorized to instruct the jury to find for the defendant, and in such a case it could hardly be contended there was no trial on an issue of fact. Here was a verdict of the jury on an issue of fact joined by the parties, and the mere fact that such verdict was returned in compliance with an instruction of the court, made necess ary by the decision of a question of law arising upon the'evidence, is as immaterial upon the question we are considering as would be the decision of any other question of law arising during the trial. The issue of fact mentioned in the statute is the issue made by the pleadings,—that is, by joining issue upon the allegations of fact contained in the pleadings,—as contradistinguished from an issue of law raised by the pleadings by challenging their legal sufficiency, as by demurrer. It has no reference to the various questions of law or fact, however decisive or conclusive, which may arise out of the evidence during the progress of the trial.
Nor can it be correctly said that such a construction of the statute deprives either party of the right of trial by jury. Questions of law in civil cases are not submitted to the jury. The legal sufficiency of the evidence to sustain a cause of action is a question of law, and its decision by the court does not deprive the party against whom it is rendered of the right of trial by jury as heretofore enjoyed. In such a case the court does not pass upon the weight of the evidence nor the credibility of witnesses, but, admitting all that the evidence proves or fairly tends to prove in support of the cause of action, the court simply determines, as a question of law,, the legal sufficiency of the evidence to sustain such cause of action. (Frazer v. Howe, 106 Ill. 563; Pennsylvania Co. v. Conlan, 101 id. 93; Pullman Palace Car Co. v. Laack, 143 id. 242; Gartside Coal Co. v. Turk, 147 id. 120; Offutt v. World's Columbian Exposition, 175 id. 472; Illinois Central Railroad Co. v. Griffin, 184 id. 9.) This rule of law obtains in all cases where there is in the eye of the law an insufficiency of evidence, without regard to the amount involved. And we are unable to see how the question whether $1000 is involved, and consequently whether this court has jurisdiction on appeal or error, has anything to do with the right of trial by jury. The point made goes to the rule above mentioned, and long established, of the power of the court to direct a verdict in any case, rather than to the question of the appellate jurisdiction of this court. The question whether the court, on appeal, should look to the judgment or to the pleadings to determine the amount involved has nothing to do with the right of trial by jury. Nor does the statute, as construed, deprive any suitor or class of suitors of the equal protection of the laws, as counsel seems to suppose. If it does, then every limitation to the appellate jurisdiction of this court operates in the same way. The real question involved is, of course, our appellate jurisdiction, and that depends on the construction of said proviso to section 8 of the Appellate Court act, counsel for plaintiff contending that we must look to the declaration to determine the amount involved, while we are still of the opinion, as we have heretofore decided, that we must look to the judgment.
The writ of error is dismissed.
^ dismM