OLIVER A. HARKER. The right of appeal, under existing statutes, is too liberal, and should be curtailed. During my service upon the Appellate Court two cases have come under my observation to which I will call your attention as illustrating that proposition. Each was commenced by filing claim against a decedent's estate in the County Court, sitting in probate. There was a trial by jury in the County Court and an appeal to the Circuit Court, where there was another trial by jury. An appeal was prosecuted to the Appellate Court, and from that court to the Supreme Court. The judgment of the Circuit Court was practically the same as that in the County Court in each case. In each case the Appellate Court affirmed the judgment of the Circuit Court, and in each case the Supreme Court affirmed the Appellate Court. There was a delay in the administration of each of those estates for a period of three years to reach the end of the litigation for the sole. reason that the amount involved exceeded $1,000. In neither case was there a mooted question of law involved, but the entire controversy was over disputed questions of fact. There are six distinct classes of cases triable by jury and of frequent occurrence named by the statute, of which the County and Probate Courts take original jurisdiction in which appeals lie to the Circuit Court for trial de novo, and it is provided by the general act relating to "courts" that appeals may be taken from the final orders, judgments and decrees of the County and Probate Courts to the Circuit Court in all matters except in proceedings for the confirmation of special assessments, in proceedings for the sale of lands for taxes, in common law and attachment cases, and in cases of forcible entry and detainer. Our County and Probate Courts are courts of record, and there is no good reason why appeals from the orders, judgments and decrees in all matters tried there should not go directly to a court of last resort, to be reviewed upon the PRESIDENT'S ANNUAL ADDRESS. record, without subjecting parties and estates to the delay and expense of going through another trial court. In the two cases mentioned, had the law provided that the appeals should be taken directly to the Appellate Court and the judgment there be made final, much expense would have been saved the claimants and the estates, and the end of the litigation reached in one, instead of three years. Is there a plausible reason why a case should have two trials of the facts in two different courts of record, and two trials of the record in two different courts of appeal? I am of the opinion that the law relating to appeals from the Appellate to the Supreme Court should be amended. Except in Chicago, where the trial dockets are congested to an unusual degree, the chief ground of complaint at the law's delays is of cases after leaving the trial courts. Of the cases appealed, a great majority of them must go to the Appellate Court. The Appellate Court act provides that it shall have appellate jurisdiction of all judgments, orders and decrees of the Circuit Courts, Superior Courts, County Courts and City Courts in all suits at law and chancery, except cases involving a franchise, a freehold, the validity of a statute, or a construction of the Constitution, and misdemeanors. In all cases determined in actions ex contractu where the amount involved is less than $1,000, and in all cases sounding in damages wherein the judgment of the court below is less than $1,000, the judgment of the Appellate Court is final. All other cases may travel farther, and a dissatisfied suitor may have the same record reviewed by the Supreme Court. The Appellate Courts in each of the four districts of the State meet but twice a year, and the Supreme Court meets but twice a year in each of the three grand divisions of the State. Under our practice a judgment cannot reach an affirmance in the Appellate Court until it is six months oldoften a year old. If an appeal be prosecuted to the Supreme Court, there will be another delay of at least a year. Under OLIVER A. HARKER. the most favorable conditions, a case which has the right to travel through both Appellate and Supreme Courts cannot reach the end of its journey until the judgment is eighteen months old. Cases received in the Appellate Court are carefully considered by the three judges in conference. The conclusions of fact reached by them in certain classes of cases are never departed from, and in others but very rarely. In the great majority of cases an affirmance in the Appellate Court is followed by an affirmance in the Supreme Court, even where the mooted questions are ones of law. In the last published volume of the Illinois Supreme Court Reports (156) eighty-seven cases are reported. Forty-five (more than half) of them had gone through the Appellate Court. Of the forty-five, the judgments in thirty-eight were affirmed and in seven reversed; and in the seven, the reversals were solely because the Supreme Court differed from the Appellate Court on questions of law. I suggest that the law be so changed as to cut off all appeals from the Appellate Court to the Supreme Court, except as to certified questions of law, that an appeal record filed in the Appellate Court shall go no further, and that the Supreme Court shall consider only such questions of law that have been considered by the Appellate Court as shall, in the form of propositions of law, be certified by the last named court. I advocate such an amendment for the additional reason that it would greatly relieve an overworked Supreme Court and bring us more carefully considered opinions. To speed the course of a case in the Supreme Court, instead of having two terms a year in each one of the grand divisions, I suggest such legislation as would require the court to be open from the first of September until the first of July; that a case for review be considered as commenced. in that court when the appellant or plaintiff in error should PRESIDENT'S ANNUAL ADDRESS. file a record, abstract and brief with the clerk; that a brief be due from the appellee or defendant in error within a certain number of days after service upon him; that the case be taken upon the briefs or the briefs and oral argument, and considered in conference immediately, and that the decision be announced when reached. Such a change, of course, would require the court to sit in one place; against which proposition I have never heard a valid argument advanced. In the trial courts much delay is caused by our defective jury system. When we see from four to six weeks consumed in an effort to obtain twelve impartial men to try a case, we feel there is something wrong. Such are the statutory requirements and grounds for challenge that it is almost impossible to secure a jury of intelligent men to try a homicide case that has excited general public attention and been commented upon freely by the press. The expression of an opinion based upon rumor or a newspaper statement should not disqualify a juror who can divest himself of the opinion to the extent of enabling him to try the case impartially and be governed by the law and evidence. Mistrials, by reason of juries failing to agree, are frequent causes of delay. While on the circuit some years ago a case was twice tried before me which had been twice tried before my predecessor. In the first three trials the jury was discharged because of their inability to agree, and in the fourth I only succeeded in securing a verdict by an application of the starving process. I am of the firm opinion that the unanimous verdict requirement should be relegated to the past. This, of course, could be accomplished only by an amendment to the Constitution. It would render this paper too lengthy to set forth in full my reasons for such an amendment. Many objections of a sentimental character are urged against it. The only substantial one that I have heard is that it would, in many instances, prevent free and full dis OLIVER A. HARKER. cussion and deliberation over the case. If a majority verdict should become the rule of law, too often, it is urged, would impulsive jurors, influenced by the eloquent appeal of counsel having the closing speech, vote a verdict without taking time to carefully and coolly consider the evidence and instructions. Such objection could be obviated by a provision requiring a unanimous verdict if returned within a certain number of hours; and if no verdict be then returned, after that to allow a verdict voted by two-thirds or three-fourths of the jury to be returned. The right to amend pleadings should extend to indictments. Where a grand jury, after full inquiry, has presented and returned a bill charging a defendant with the commission of a criminal offense, it should not be quashed and delay thereby occasioned because the State's attorney failed to fill out some blank for date, or inartificially worded the charge. Such amendment should be allowed as will correctly and fully present the charge voted upon by the grand jury and returned into court. The right to a change of venue on account of the prejudice of the judge, so often resorted to for the purpose of a continuance when all other means have failed, should be modified. It should be limited to the presiding judge, and should never be allowed to carry the case beyond the term at which the application is made. In our State the distinction between law and equity is observed to such an extent as to require the trial courts to keep separate dockets-one for law cases and the other for chancery cases. The modes of service, pleading, hearing evidence and trial are entirely different. So slight is the distinction in some instances, that a good lawyer sometimes brings a suit in equity that should have been brought on the law side of the docket. After months of time in taking depositions and other preparation, it is held upon the trial |