Flanigen v. City of East St. Louis, 131 Ill. 444 (1890)

Jan. 21, 1890 · Illinois Supreme Court

131 Ill. 444

Alexander Flanigen et al. v. The City of East St. Louis, for use, etc.

Filed at Mt. Vernon January 21, 1890.

Appeal—;final judgment in the Appellate Court—lohat so considered. Where the Appellate Court reverses the judgment oí the trial court and remands the cause for further proceedings generally, the judgment of the Appellate Court is not final, and hence not reviewable in this court on appeal or error.

Wbit of Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, pre- - siding.

This was an action brought in the circuit court of St. Clair county, in the name of the city of East St. Louis, for the use of William D. Griswold, on the official bond of Alexander Flanigen, as treasurer of said city, against him and his sureties, for failure to pay five certain warrants issued by said city for street lighting, to said Griswold, against its tax levy for the year 1886. The annual appropriation and the tax levy were made by the city in the month of September, 1886. One of the warrants was issued for street lighting done by Griswold in July, 1886; another for street lighting done in August, 1886; another for street lighting done in’ September, 1886; another for street lighting done in October, 1886; another for street lighting done in November, 1886. There were five breaches assigned in the declaration, one on account of each of the warrants. A general demurrer was interposed by the defendants to the declaration. The court sustained the demurrer. The plaintiff elected to stand by the declaration, and final judgment was given against it and in favor of the defendants. The case was taken by writ of error to the Appellate Court for the Fourth District, and there the judgment of the circuit court was reversed, and the cause remanded.

Mr. A. S. Wildebman, and Mr. J. M. Hamill, for the plaintiffs in error.

Mr. W. C. Kueffnee, for the defendant in error Griswold.

Per Curiam:

It is claimed hy plaintiffs in error that a decision of this case involves the construction of section 12, article 9, of the constitution, prohibiting cities from incurring indebtedness beyond a certain limit, and that the Appellate Court had no jurisdiction to determine the question. On the other hand, it is insisted that the judgment rendered in the ■Appellate Court was not final, and the writ of error can not be maintained. The statute (Starr & Curtis, p. 1853, see. 91,) provides for an appeal or writ of error to review a judgment of the Appellate Court in the following cases: “If the judgment of the Appellate Court be that the order, judgment or decree of the court below be affirmed, or if final judgment or decree be rendered therein in the Appellate Court, or if the judgment, order or decree of the Appellate Court be such that no further proceedings can be had in the court below except to carry into effect the mandate of the Appellate Court.” Here the judgment was reversed, and the cause remanded for another trial in the circuit court, and hence does not fall within either clause of the statute which authorizes an appeal or writ of error. Whether the Appellate Court had jurisdiction or not does not affect the question. The decision of that court can not be reviewed on appeal or writ of error, unless it has rendered such a judgment as is described in the statute supra.

The writ of error will be dismissed.

Writ dismissed.