Agnew v. Supple, 99 Ill. App. 19 (1901)

Dec. 24, 1901 · Illinois Appellate Court

99 Ill. App. 19

John P. Agnew v. Frank Supple.

1. Appellate Court Practice — Omission of a Finding of Facts Through Inadvertence. — Where a case is reversed without remanding, and a finding of facts is omitted through inadvertence, and the same is taken to the Supreme Court, where it is remanded to this court with directions to enter a judgment reversing and remanding, or affirming the judgment of the court below, this court will supply the omission in accordance with the mandate of the Supreme Court.

Trespass on tlie Case, for personal injuries. Error to the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in this court on a remanding order from the Supreme Court.

Reversed, with a finding of facts.

Opinion filed December 24, 1901.

O. W. Dynes, attorney for appellant.

M. St. P. Thomas, attorney for appellee.

Opinion

per Curiam.

This case has been remanded to this court with directions to enter such judgments reversing and remanding or affirming the judgment of the Superior Court, as in its judgment may be proper, or reciting in its judgment the facts found by it, if any such final determination is made, as is provided in section 88 of the practice act. Supple v. Agnew, 191 Ill. 439.

A motion has been made by appellants that final judgment be entered in appellants’ favor, with a finding of facts. A cross-motion has been made by appellee asking us to affirm the judgment of the Superior Court. It is evident from the opinion filed when the case was originally before this court (Agnew v. Supple, 80 Ill. App. 437), that we did not intend to be understood as finding the facts as they were found by the trial court, but that through inadvertence, to which our attention was not called by counsel, a finding of facts by this court was omitted. It is our duty now to supply such omission. Appellant’s motion for final judgment will accordingly be granted, and a finding of facts made.

The opinion rendered at the former hearing and filed March 14, 1899, reported in 80 Ill. App. 437, will be refiled as the opinion of the court, and the judgment of the Superior Court will be reversed without remanding, in accordance with the views in said opinion expressed. Re versed.

Finding of Facts. — The court finds that the injury to the appellee was not caused, as charged in the declaration herein, by any negligence of appellant in failing to furnish a sufficient number of persons to perform the work of moving the log or timber by the fall of which' appellee was injured, and to prevent said timber from rolling, falling or shifting while the “ dolly ” with said timber was being moved along the runway. The court finds that the fall of said timber and the injury to said appellee were caused by the negligence of appellee and his fellow-servants in failing to exercise due care and caution, and failing to use obvious and ordinary precautions for their own safety.