delivered the opinion of the court:
The plaintiff recovers a judgment in the nisi prius court, which is reversed by the Appellate Court and the cause is not remanded. The Appellate Court incorporates in its judgment a finding of facts, from which it appears that the plaintiff is without right to recover. No appeal or writ of error is prosecuted to reverse the judgment of the Appellate Court. Is that judgment of the Appellate Court, with the finding of facts, a bar to a second suit by the same plaintiff upon the same cause of action? Plaintiff in error answers no, and relies upon section 25 of chapter 83, Hurd’s Revised Statutes of 1903, which reads:
“In any of the actions specified in any of the sections of said act, if judgment shall be given for the plaintiff, and the same be reversed by writ of error, or upon appeal; or if a verdict pass for the plaintiff, and, upon matter alleged in arrest of judgment, the judgment be given against the plaintiff ; or, if the plaintiff be non-suited, then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff, his or her heirs, 'executors or administrators, as the case shall require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after.”
To the question propounded above, defendant in error answers yes, and relies upon section 88 of chapter no, Hurd’s Revised Statutes of 1903, which reads:
“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 the 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.”
Plaintiff in error first urges that the finding of facts is not in form or effect a judgment, and that a mere verdict or finding of fact is not res judicata.
The judgment of the Appellate Court does not provide ■that the appellant go hence without day, or that the appellee take nothing by his suit, or other words of like import showing a final disposition of the subject matter of the litigation, which, by the common law, are necessary to a final judgment in favor of a plaintiff in a court of original jurisdiction. ( Wenom v. Fossick, 213 Ill. 70; Chicago Portrait Co. v. Crayon Co. 217 id. 200.) Such a recital is made unnecessary by section 88, szipra, which points out the effect that shall be given the judgment of the Appellate Court in which the finding of facts is recited,. viz., it “shall be final and conclusive as to all matters of fact in controversy in such suit.” We regard a finding of facts by the Appellate Court as an adjudication that the facts as found exist.
Our attention is called to the cases of Union Nat. Bank v. Manistee Lumber Co. 43 Ill. App. 525, Chicago, Rock Island and Pacific Railway Co. v. Berg, 57 id. 521, Chicago Forge and Bolt Co. v. Rose, 69 id. 123, and West Chicago Street Railroad Co. v. Boeker, 70 id. 67. In each of those cases the Appellate Court for the First District expressed the opinion that a judgment and finding of facts, such as we are now considering, would not bar a second suit for the same cause of action. An examination of these cases, however, shows that the point was not involved in the decision of either case. The only reasoning on the subject in any of these authorities that can be regarded as supporting the opinion expressed, is found in Chicago Forge and Bolt Co. v. Rose, supra, and is to the effect that the only purpose of the statute in requiring the finding of facts by the Appellate Court was, that this court might be advised of the basis of fact upon which the Appellate Court proceeded, and be thereby enabled to determine whether the Appellate Court correctly determined the law of the case, and that the finding of facts, therefore, was without effect except in the particular suit in which it was made. With this reasoning we do not agree,—first, because it does violence to the language of section 88, supra; and second, if that was the only purpose of the finding of facts, the legislature would, no doubt, have-excepted from the operation of the statute requiring a finding of facts that large class of cases in which the judgment of the Appellate Court cannot be reviewed by this court.
It is then urged that the Appellate Court has no power, where there has been a jury trial, to render a judgment finding the facts different from the finding of the nisi prius court. So to do, it is said, would violate the constitutional right of the parties to a trial by jury.
In this regard plaintiff in error relies principally upon the case of City of Spring Valley v. Coal Co. 173 Ill. 497. In that case, it is to be observed, the defendant recovered a judgment in the court of original jurisdiction. In the Appellate Court the judgment was reversed without a remanding order, the facts were found, and the Appellate Court then went further and assessed plaintiff’s damages and entered a judgment in favor of the plaintiff for the amount of such damages. In this court it was determined that the Appellate Court exceeded its power in assessing the damages and entering judgment for the amount thereof, and language used by this court in reference to the power of the Appellate Court to enter judgment must be considered in the light of the proposition then before us. There was then no question here as to the effect to be given a finding of facts by the Appellate Court, made in exact pursuance of the statute. We have frequently held that the right of trial by jury, as it was enjoyed at the time of the adoption of the constitution of 1870, is not infringed by the statute authorizing the Appellate Court, in proper case, to make a finding of facts which “shall be final and conclusive as to all matters of fact in controversy in such cause.” (Borg v. Chicago, Rock Island and Pacific Railway Co. 162 Ill. 348, and cases there cited; Earnshaw v. Western Stone Co. 200 Ill. 220.) It seems unnecessary to repeat the views heretofore expressed by us on this subject.
We conclude that the case at bar does not come within the provisions of section 25, supra.
The judgment of the Appellate Court will be affirmed. •
Judgment affirmed.