¶1dissenting:
¶2Plaintiff, a licensed real estate broker, filed a verified statement of claim for commissions. Defendants filed affidavits of merits. On hearing, plaintiff made a motion for a nonsuit, which was allowed on January 29, 1939. March 1,1939, the court on motion of defendants, pursuant to notice served February 25, 1939, vacated the order permitting the nonsuit, overruled the motion therefor and entered judgment in favor of defendants and plaintiff appeals.
¶3The judgment of the court was entered pursuant to Rule 122 of the municipal court covering the practice of that court with relation to voluntary discontinuances, which in the circuit and superior courts is controlled by § 52 of the Civil Practice Act (Smith-Hurd Anno. Stats, ch. 110, § 176 of the statute, p. 466 [Jones Ill. Stats. Ann. 104.052].) Section 52 is not applicable to the municipal court. Ptacek v. Coleman, 364 Ill. 618.
¶4The contention of plaintiff is that the right to take a voluntary nonsuit is a substantial right of which plaintiff could not be deprived by rule of court; that the municipal court was without power to enact Rule 122, and that it is invalid for that reason. Defendants contend this question has been settled in their favor by Ptacek v. Coleman, 364 Ill. 618. It has not. The sole question in that case was whether § 52 of the Civil Practice Act should be held to apply to the practice in the municipal court. This court and the Supreme Court held it did not. The question of whether Rule 122 was valid or invalid was not raised.
¶5Plaintiff’s contention is that the right of a litigant to take a nonsuit is a substantive right and that the municipal court is wholly without power to deprive a litigant of it by rule of court or any other way. Plaintiff concedes power to make rules of practice is granted to the municipal court by § 20 of the Municipal Court Act (see Ill. Rev. Stat. 1939, ch. 37, par. 375, pp. 1061-1062 [Jones Ill. Stats. Ann. 108.045]), but says the right to take a nonsuit is provided for by § 30 (Ill. Rev. Stat. 1939, ch. 37, par. 385, p. 1064 [Jones Ill. Stats. Ann. 108.53]) and that Rule 122 is invalid because it deprives plaintiff of a substantive right contrary to the statute. In Danoff v. Larson, 368 Ill. 519, the Supreme Court held § 20 of the Municipal Court Act did not authorize judges to-determine by rule the method of serving summons which had been prescribed by the legislature. This holding was followed in Cohen v. Bendix, 369 Ill. 507. In Barry v. Knight, 296 Ill. App. 277 (appeal refused by the Supreme Court), an attempt by rule to give to the municipal court general equity jurisdiction was held invalid. In People ex rel. v. Municipal Court of Chicago, 297 Ill. App. 431, it was held a writ of prohibition would not issue to determine the extent of the jurisdiction of the municipal court.
¶6Plaintiff argues the right to a nonsuit is a substantive right, and this being true, it follows, it is said, that a litigant may not be deprived of the right by court rule. Plaintiff cites Daube v. Kuppenheimer, 272 Ill. 350, where the right of a plaintiff to take a nonsuit after the court had directed a verdict against him at the close of all the evidence and while the court was stating its reasons for directing the verdict but before the jury had actually signed it was sustained. It was there held that a trial at which the court directed a verdict for one of the parties was a trial by jury within the meaning of the statute, which by implication permitted the plaintiff to take a nonsuit at any time before the jury retired. The court held plaintiff had an absolute right to take the nonsuit. The opinion reviewed at length the history of nonsuits, stating that at common law plaintiff was permitted to take a nonsuit at any time before the verdict was rendered in court and pointing out the various modifications of the rule by statutory enactment.
¶7In Ex Parte: In the Matter of Skinner and Eddy, Corporation, Petitioner, 265 U.S. 86, the Supreme Court of the United States granted a mandamus to compel the court of claims to allow plaintiff to assert his right to take a nonsuit. The opinion by Chief Justice Taft pointed out that at common law plaintiff had an absolute right to discontinue or dismiss his suit at any stage of the proceedings prior to verdict or judgment and that this right had been declared to be substantial, citing Barrett v. Virginian Ry. Co., 250 U.S. 473; Confiscation Cases, 7 Wall. 454, 457; Veazie v. Wadleigh, 11 Pet. 55; United States v. Norfolk & Western Ry. Co., 118 Fed. 554. The opinion goes, on to say (citing authorities) that it is ordinarily the undisputed right of a plaintiff to dismiss a bill in equity before a final hearing, and except in certain cases an examination of English and American authorities showed that the right of a complainant to dismiss his bill.without prejudice, on payment of costs, was as of course; that the exception was where the dismissal of the bill would prejudice the defendants in some other way than by the mere prospect of being harassed and vexed by future litigation. The court said:
¶8“The right to dismiss, if it exists, is absolute. It does not depend on the reasons which the plaintiff offers for his action. The fact that he may not have disclosed all his reasons or may not have given the real one cannot affect his right.”
¶9Plaintiff says the right of dismissal is identical with the right to take a nonsuit, and that “In view of the decisions cited herein, it is evident that the right to a non-suit is not a mere matter of practice that can be changed to suit the whims of the Judges of the Municipal Court of Chicago. It is not even a matter which can be changed by the Judges no matter how noble their motive. It is a substantive right — a right existing at common law — a right limited by Section 30 of the Municipal Court Act, but not otherwise — and not a matter of procedure which can be changed by rules of court. ’ ’
¶10It may be well to recall the language of Eule 122 and the interpretation of it. It provides:
¶11‘ ‘ Plaintiff may discontinue before or after defence.
¶12“The plaintiff may, at any time before the filing of the defendant’s defence, or after the filing of such defence before taking any other proceeding in the action (other than an interlocutory application), by notice in writing or in open court to the defendant or defendants, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of action and thereupon he shall pay to the defendant or defendants their costs in the action, or, if the action be not wholly discontinued, such portion of such costs as the court may deem just. Save as in this rule is otherwise provided, it shall not be competent for the plaintiff to discontinue the action, but the court may, before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise as may be just, order the action to be discontinued, or any part of the alleged cause of action to be struck out. A discontinuance of any action by the plaintiff shall not affect the right of a defendant to prosecute any counterclaim theretofore filed. ’ ’
¶13A note to Rule 122 shows the construction of it. The note says the rule fakes away the power of a plaintiff heretofore existing to claim a nonsuit; that neither party can by devices of amendment or otherwise, evade these rules, nor can it be used for bringing about indirectly that which cannot be effected directly; that two or more co-plaintiffs cannot withdraw without the consent of the others, if a co-plaintiff declines to proceed the usual order will be to strike him out as a plaintiff and add him as a defendant, upon such terms as to costs as may be ordered by the court; that if the defendant is an infant, the plaintiff cannot discontinue until a guardian ad litem has been appointed and appearance enteredthat leave is required for a plaintiff if after the filing of a defense he has taken any proceedings, other than interlocutory, in continuation of the litigation; that leave will be given upon such terms as may seem just (1) either as to costs, or (2) any other action, or (3) otherwise; that a plaintiff who, without leave, discontinues or withdraws part of .his action is not prevented from bringing another action for the same subject matter, but where leave is required the court will consider all the circumstances and if it seems just will impose terms that no other action shall be brought; or leave to discontinue may be refused and judgment given for the defendant.
¶14Section 30 of the Municipal Court Act, with certain provisions with reference to jury trial, further provides :
¶15“Every person desirous of suffering a non-suit on trial shall be barred therefrom unless he do so before the jury retire from the bar, or before the court, in case the trial is by the court without a jury, states its finding. ’ ’
¶16The difference between the rale and the statute is deep and fundamental. The note to the rule plainly states that the rule takes away the power of a plaintiff heretofore existing to claim.a nonsuit. The statute gives to the person who is the owner of a cause of action absolute control of it until the jury retires or until the court states its finding if the trial is by the court. Under the rule that power and control becomes conditional as soon as a defendant files his defense. From that moment the exercise of the right ceases to be absolute. There might be many reasons why the plaintiff would deem it unwise to continue the existing law suit. At common law and under the statute his right to continue or discontinue was in his control. The rule takes this from him. The note to the rule says so. There is a clear contradiction between the statute and the rule. The statute was passed by the legislature. The rule is made by the court under supposed statutory authority. We cannot assume that the legislature intended to grant to the municipal court power to repeal the statute which the legislature itself enacted. That is precisely what has happened here. Danoff v. Larson, 368 Ill. 519, is, as we read it, decisive. In that case the municipal court acting under the same authority as here, undertook to prescribe a method by which a defendant might be summoned to court. The opinion of the court said that the legislature had prescribed the manner in which a summons should be served and pointed out that while under § 20 of the Municipal Court Act (Ill. Rev. Stat. 1937, ch. 37, par. 375 [Jones Ill. Stats. Ann. 108.045]) the judges of the court were given power to adopt in addition to or in lieu of the provisions of the statute, such rules regulating the practice as they might deem necessary or expedient, this power did not extend so far as to give authority to prescribe the time or manner of serving initial process. The Supreme Court declined to attempt to give by precise definition the meaning of the word “practice,” saying that so far as the briefs advised or independent investigation had shown “there is no authority precisely in point.” The opinion of the court, however, points out that the Municipal Court Act was not intended to give to judges of that court power to make substantive rules of law; that it was clear the means by which a person was summoned into court went deeply into the substance of his rights and was more than a mere matter of form. Can it be said that the power to prescribe the manner in which notice shall be given to a defendant of a court proceeding is fundamental and a part of his substantial right while that of controlling his own suit after the court has acquired jurisdiction is not! I think this question must be answered in the negative.
¶17For the reasons indicated I would hold the rule invalid. I think the judgment should be reversed and the cause remanded with directions to permit plaintiff to take a nonsuit.