delivered the opinion of the court:
Appellant prayed for and obtained an appeal to this court under section 119 of the new Practice act, (Laws of' 1907, p. 468,) by signing a stipulation that final judgment might be entered against him in this court if his appeal was not prosecuted with effect. This provision of that section is new to our practice, and reads as follows: “And appeals shall also be allowed from the judgment of the Appellate Court to the Supreme Court, in all cases where such judgment of the Appellate Court is that the judgment of the trial court be reversed and the case remanded for a new trial, if the party so appealing will stipulate in writing, at the time of praying the appeal, that final judgment in the case may be entered in the Supreme Court against him, if such appeal is not prosecuted with effect.”
Appellee contends, if this court should decide that final judgment should be entered against appellant in accordance with the stipulation, that on the facts in this case appellee would thereby be deprived of his constitutional right of trial by jury, without his consent. Both parties did not stipulate in this case that the judgment might be final in this court and the section does not so require. The purpose of this provision of said section 119 is manifest. It was intended to bring litigation to a speedier conclusion than would be possible under the old Practice act when the case was reversed by the Appellate Court and sent back for a new trial. In this case, if this court should agree with the finding of the Appellate Court, considering no other question than the one considered by that court, it would simply send the case back for a new trial, and instead of shortening the litigation would lengthen it. That, evidently, was not the intention of this provision of the statute. If .this court entered judgment against appellant on any other basis it would have to pass on the merits of the controversy.
Appellee contends in his brief here that Cline did not owe appellant anything, and there is evidence in the record fairly tending to show that if there was anything which appellant should be credited with for the services for which he was seeking to recover, it might be considerably less in amount than the money he had already collected on the execution, namely, $3340, and that the jury, on the evidence, might have found a verdict against appellant. It seems to be admitted on this record that appellant had in his possession $3340 which Cline should be credited with in striking a balance between him and appellant. The evidence offered by appellee as to the amount which appellant should be credited with for services ranged all the way from $2200 to $4200, while the evidencé offered by appellant tended to show that he was entitled to an amount running from $5000 to $15,000 or more, less the set-off of $3340 so collected in .the attachment proceeding and set up in the plea of appellee. If this court were to enter final judgment in this case, it might be justified, on this, record, in entering judgment against appellant in any amount up to and exceeding $1000 or in his favor for any amount up to $10,000. A question of fact such as this must be tried by a jury, and it is only for the court to say whether the evidence offered is pertinent to the issue. It has been held that it is entirely proper for the trial court, as well as for a reviewing court, to decide whether there is sufficient evidence before the jury to present an issue of fact under the pleadings, and to direct a verdict if there is not, (Commercial Ins. Co. v. Scammon, 123 Ill. 601,) but it is not within the province of the trial court to weigh the evidence and ascertain where the preponderance lies. The function of the trial court is limited-strictly to determining whether there is or is hot evidence legally tending to prove the fact affirmed. We have held in discussing a similar question, that an appellate tribunal may exercise,- on appeal, the same powers in this respect and no more. (Commercial Ins. Co. v. Scammon, supra.) If any judgment of any kind were entered against appellant, other than merely affirming the judgment of the Appellate Court, it would necessarily result in this court, on this record, weighing and considering the evidence.
In City of Spring Valley v. Coal Co. 173 Ill. 497, we discussed a very similar question-in construing a section of the old Practice act holding that the right of trial by jury referred to in section 5 of article 2 of the constitution of 1870, and which is invoked here by appellee, means the right as it had been enjoyed before the adoption of that instrument, and stated (p. 506) : “A court of review in this State, at the time the constitution was adopted, had never assumed the power to assess damages or render judgments for the recovery of property or damages, except upon the verdict of a jury, unless the right to a jury had been waived. It has exercised the right to direct proper judgment to be entered where the court has failed to enter such a judgment, but not to assess damages which the party has a right to contest before a jury. * * * While the right of trial by jury as enjoyed before the adoption of the constitution did not include a right in a plaintiff to submit a claim, clearly without merit, to successive juries where a court of review could see that no judgment could be permitted to stand, it did require that no judgment for damages should be entered except upon the verdict of a jury, unless the right was waived.” We deem this reasoning conclusive on the facts in this case. The question whether the proof under the plea of set-off showed that appellee had a claim of set-off or a counter-claim, or the amount so collected by the appellant should be applied as a partial payment, as contended for by appellant, cannot change the result.
This court has no more power to infringe upon the right of trial by jury than has a trial court. If a trial court should have taken the case from the jury, a court of review, on appeal, might be authorized to exercise the same power, but no greater. To enter judgment on this record against the appellant under this provision of the- new Practice act, it would not only be necessary to review the entire evidence in the record, but to weigh and consider it so as to be able to enter a judgment independent of, and, if necessary, contrary to, the finding of the jury.
We do not decide in this case" that said provision of said section 119 above quoted is unconstitutional as to all cases that may come within its terms, but we do hold that where, as in this case, in order to enter a final judgment against appellant the court must consider evidence on controverted questions of fact and enter final judgment in accordance with such consideration, such provision is .unconstitutional. The following decisions, among others, tend to support this conclusion: Fraser v. Howe, 106 Ill. 563; Jones v. Fortune, 128 id. 518; Manistee Lumber Co. v. Union Nat. Bank, 143 id. 490; Siddall v. Jansen, 143 id. 537; Frost v. People, 193 id. 635; Kerfoot v. Cromwell Mound Co. 115 id. 502; Commercial Union Assurance Co. v. Scammon, 126 id. 355.
Our determination of the constitutional question necessarily leads to the appeal being dismissed. The provision under which the appeal was granted by the Appellate Court being unconstitutional, so far as it applies to this case, the appeal to this court did not lie and should not have been granted. The dismissal of the appeal will leave the judgment of the Appellate Court reversing the judgment and remanding the cause for a new trial in full force, and that court will proceed to issue its mandate as if no appeal to this court had been taken.
Appeal dismissed.