dissenting:
The purpose of the statement of claim required by section 40 of the Municipal Court act is to inform the defendant of the nature of the claim or suit that he is called upon to defend. The defendant made no objection to the statement of claim as filed, and such averments as would make the statement show a cause of action,—that the defendant was a carrier of passengers, that plaintiff was a passenger for hire, and that plaintiff was in the exercise of due care and was injured by the negligence of the defendant, etc.,—add nothing that would inform the defendant of the nature of the case, The only possible reason for inserting such formal allegations would be to conform to the common daw rule that-a declaration must state a cause of action. The defendant, if not sufficiently informed of the statement of claim, had the right to demand a more specific statement, but instead of that it filed an affidavit of merits, in which it reserved the right to object to any insufficiency of plaintiff’-s claim, went to trial and had a fair trial on the merits, and, having been unsuccessful in the trial, now asks that the judgment be reversed because the statement of claim did not set out a complete cause of action. This method of procedure is clearly contrary to the act when its various provisions are all considered, and the appellant cannot raise the question of the sufficiency of the statement of claim for the first time on writ of error.
In addition to the quotation from section 40 in the above opinion there is the following provision immediately following the part quoted: “In cases of the fourth class mentioned in said section 2 of this act, the municipal court may adopt such rules and regulations as it may deem necessary to enable the parties, in advance of trial, to ascertain the nature of the plaintiff’s claim or claims, or of the defendant’s defense or defenses.” Section 19 provides, as does section 3, that in cases of the fourth class mentioned in section 2 of the act the issues shall be determined without other forms or written pleadings than those therein-after expressly prescribed or provided for. Section 52 of the act provides: “If the method of procedure in any case within the jurisdiction of the municipal court is not sufficiently prescribed by this act, or by any rule of court adopted in pursuance hereof, the court may make such provision for the conducting and disposing of the same as may appear to the court proper for the just determination of the rights of the parties.” Section 23 provides the manner in which judgments in cases of the fourth .class may be reviewed by writ of error. The sixth paragraph of that section provides that it shall be the duty of the judge by whom such final order or judgment is entered, to sign and place on file in the case, if so requested by either of the parties to the suit, a correct statement, to be prepared by the party requesting the signing of the same, of the facts appearing upon the trial thereof, and also questions of law involved in such case and the decisions of the court upon such questions of law, or, if such party shall- so elect, a correct stenographic report of the proceedings of the trial and a correct statement of such other proceedings in the case as such party may desire to have reviewed by the Supreme Court or Appellate Court. The seventh paragraph of said section 23 provides that “no order or judgment so sought to be reviewed shall be reversed unless the Supreme or Appellate Court, as the case may be, shall be satisfied from ' said statement or stenographic report, or reports, signed by said judge, that such order or judgment is contrary to the law and the evidence, or that such order or judgment resulted from substantial errors of said municipal court directly affecting the matters at issue between the parties, in which last mentioned case the Supreme Court or Appellate Court, as the case may be, may enter such order or judgment as, in its opinion, the municipal court ought to have entered, or it may reverse the said order or judgment and remand the case to the municipal court for further proceedings.” The eighth paragraph of section 23 provides that “no assignment of error in the Supreme Court or in the Appellate Court in any such case shall be allowed which-shall call in question the decision of such municipal court in respect to any matter pertaining to the practice in such court, nor shall any exceptions to the rulings and decisions of the municipal court upon the trial, which appear to have been made against the objection of the party complaining thereof, be necessary to the right of either party to a review of such rulings and decisions in the Supreme Court or Appellate Court upon their merits, but it shall be the duty of the Supreme Court or the Appellate Court, as the case may be, to decide such case upon its merits as they may appear from such statement or stenographic report or reports signed by the judge: Provided, however, that the Supreme Court or Appellate Court, as the case may be, may grant relief from any error of the municipal court in respect to a matter of practice therein in any case where, in the opinion of the Supreme Court or the Appellate Court, such relief is necessary to prevent a failure of justice.” In section 22 it is provided that in case of appeal no assignment of error to the Supreme Court or Appellate Court shall be allowed which shall call in question the decision of the municipal court in respect to any matter pertaining to the practice in said court, provided, however, that the Supreme Court or Appellate Court, as the case may be, may grant relief from any error of the municipal court in respect to matters of practice therein in any case where, in the opinion of the Supreme Court or Appellate Court, such relief is necessary to prevent a failure of justice.
The Municipal Court act abolishes the courts of justice of the peace within the city of Chicago. These actions of the fourth class are, generally speaking, the class of cases which were formerly brought before a justice of the peace, in which no written pleadings were required. While the act requires that in actions of the fourth class a statement of claim must be filed, the act expressly provides that no written pleadings shall be required, and it is particularly provided that nothing in the act, including the provision that a statement of claim shall be filed in actions of the fourth class, shall be construed to require a statement of claim in any action for tort to set forth the cause of action with the particularity required in a declaration at common law. It is the theory of common law pleading that a cause of action is stated in the briefest and most complete manner by a declaration appropriate to the form of action, and assuming this to be true, it would be impossible to make any improvement by substituting any other system for cases of the fourth class in the municipal court. It was clearly the intention of the legislature in passing the Municipal Court act, as further shown in section 48 of the act, to get away from the technicalities of common law pleading in actions of the fourth class, so that in cases of the fourth class (which are, generally speaking, the same class of cases as were formerly tried in the justice courts and in which the amount involved is not large,) the parties could submit a case and have it decided on its merits, and if a writ of error were taken the case should be reviewed only upon its merits. . That has not been done in this case, and the cases cited in support of the proposition that if a declaration is so defective that it will not sustain a judgment the insufficiency may be availed of on a writ of error, are cases which arose under the common law system of pleading.
I think that the decision of this court in the case of Edgerton v. Chicago, Rock Island and Pacific Railway Co. 240 Ill. 311, and the case of Schultz v. Ericsson Co. 264 id. 156, should be adhered to. To adopt the construction put upon the Municipal Court act by the foregoing opinion would be to render void many of its provisions, as it was never required, even at common law, that the plaintiff should do more than set forth a good cause of action in his declaration; and according to the foregoing opinion, in the future a plaintiff in an action of the fourth class must file a statement of claim that would be good as a declaration at common law, and the entire system of common law pleading will thus be imposed in such actions, contrary to the express provisions of the act.
Farmer, C. J., and Carter, J., also dissenting.