JUDGE KILEY
delivered the opinion of the court.
This is an action for rent based on defendants’ counterclaim. Judgment was in favor of counterclaimants, Harry and Alvine Spannuth, for $2,133.33 and plaintiffs, counterdefendants, Lind and Schwab, appealed to the Supreme Court which transferred the case here.
The original action was by Lind and Schwab, as lessees, to cancel a lease of property in the village of River Forest, Illinois. The Spannuths, lessors, answered and filed a counterclaim for rent. Lind and Schwab answered the counterclaim and moved for summary judgment. The Spannuths moved to strike that motion, and subsequently filed an affidavit of defense to the motion for summary judgment. The trial court considered the various pleadings, heard arguments, took judicial notice of a zoning ordinance of River Forest, found the lease was executed with intent by the parties to use the property in violation of the ordinance and ordered both the complaint and counterclaim dismissed for want of equity. The Spannuths appealed, Lind and Schwab did not. This court affirmed that part of the order dismissing the complaint, but that part of the order dismissing the counterclaim was “reversed and remanded for further proceedings not inconsistent herewith.” 3 Ill.App.2d 112, opinion filed May 19, 1954. The mandate was filed September 20th and the hearing on the counterclaim set for September 28, 1954 “to determine the amount of rent accrued under the lease.” On this latter date the court heard testimony, found the amount of the rent due and entered the judgment from which this appeal was taken.
The complaint and counterclaim were dismissed for want of equity on the ground that the lease was illegal. This was a decision on the merits of both the complaint and the counterclaim. The summary judgment fell with the complaint and need no longer be considered since there was no appeal by Lind and Schwab. The relevant question before this court in the prior appeal was the validity of the order dismissing the counterclaim. This court decided that the lease was not illegal since it did not violate the zoning law. The effect of this decision was to set aside the order of dismissal of the counterclaim. This court then considered the counterclaim and the answer thereto and found no issue of fact raised since the only defense was the violation of the zoning ordinance. But that defense had already been vitiated. This court therefore remanded “with directions to enter judgment for the amount of the rent. . . .” It is this judgment which Lind and Schwab attack as being beyond the jurisdiction of this court. The grounds urged in the Supreme Court were (a) want of constitutional due process and (b) want of appellate jurisdiction. The first ground was eliminated by the transfer of the case to this court.
Lind and Schwab filed no petition for rehearing with respect to our previous opinion nor did they seek leave to appeal to the Supreme Court. But they argue that since the point is jurisdictional it may be made any time in any court. They argue that the judgment exceeded appellate jurisdiction and was therefore void; that the mandate based on the judgment is consequently void; and that the reinstatement of the case in the Superior Court was ineffective.
We think the prior judgment of this court was within this court’s jurisdiction. The final judgment of the trial court on the merits was reviewed in an exercise of appellate jurisdiction. The judgment was reversed and the cause remanded to enter judgment for rent. This is different from overruling a demurrer and ordering a writ to issue as in People ex rel. Lydston v. Hoyne, 262 Ill. 82; from ruling on a motion for new trial where the trial court had not done so in the first instance as in Goodrich v. Sprague, 376 Ill. 80; and from entering judgment on a verdict after setting aside a judgment notwithstanding the verdict as in Scott v. Freeport Motor Casualty Co., 379 Ill. 155.
The Hoyne case is the leading case on the question. There the trial court sustained a demurrer and entered judgment for the defendant. This court reversed and remanded. Thereafter, on stipulation, this court vacated its judgment and entered an order overruling the demurrer, “whereupon appellee elects to stand by his said demurrer . . .” and “ought to be required to sign the said information in the nature of a quo warranto . . . and he is hereby commanded to forthwith sign . . . the information ... in the nature of a quo warranto.” Order and judgment October 13, 1913, 36 Order Record 495, App. Ct., First Dist. Ill. This was a clear exercise of original jurisdiction and distinguishes that case from the instant case.
The remanding order in the decision of this court on the prior appeal was justified since the record disclosed no question of fact for decision. Electrical Contractors’ Ass’n of the City of Chicago v. A. S. Schulman Elec. Co., 391 Ill. 333, 346. Compare also the judgment in Bradley v. Fox, 7 Ill.2d 106, 109. Lind and Schwab argue that on a general remandment they would have had an opportunity to offer amendments to their answer to the counterclaim. This court presumes that they offered at the trial what defenses they had available. Especially is this so when their complaint, as their defense to the counterclaim, rested substantially on the alleged violation of the zoning ordinance; their motion for summary judgment implied that there was no triable issue of fact; and they took no appeal from the judgment dismissing their suit.
They contend that in any event the judgment of the Superior Court is void for want of jurisdiction over the subject matter since the remanding order was void and over their persons because the Spannuths gave only three days’ notice of filing the mandate instead of ten as required by the Civil Practice Act, Section 88(2) (Ill. Rev. Stat. 1953, Chap. 110, Sec. 212 [Jones Ill. Stats. Ann. 104.088]).
On September 16,1954, a few months after the filing of the opinion in the prior appeal, the Spannuths mailed notice to Lind and Schwab that on September 20th they would appear in the Superior Court and move for leave to file the mandate and to set a date for the hearing on the counterclaim. On September 20th leave was given, the mandate was filed, the hearing on the counterclaim was set and the judgment for rent followed.
Section 88(2) provides “upon the filing of such mandate in the trial court, the cause or proceeding shall be reinstated therein, upon ten days’ notice being given to the adverse party or his attorney.” Literally, this requires that at the time of filing the mandate ten days’ notice be given of the reinstatement of the cause. No notice is required under this section when the remandment is not for “new trial or hearing.” Boggiano v. Chicago Macaroni Mfg. Co., 118 Ill. App. 225.
The question of the necessity of the ten days’ notice has been before the Supreme Court and this court several times. In an 1855 case, Murray v. Whittaker, 17 Ill. 230, before the legislature spoke on the subject, the Supreme Court thought that the parties were bound to know that the cause had been remanded and it refused to reverse for want of notice. The court said there was no statute requiring notice and that it had no power to make rules for the circuit court. It suggested a rule, the substance of which the legislature in 1872 enacted into the law respecting notice.
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JUDGE KILEY
delivered the opinion of the court.
This is an action for rent based on defendants’ counterclaim. Judgment was in favor of counterclaimants, Harry and Alvine Spannuth, for $2,133.33 and plaintiffs, counterdefendants, Lind and Schwab, appealed to the Supreme Court which transferred the case here.
The original action was by Lind and Schwab, as lessees, to cancel a lease of property in the village of River Forest, Illinois. The Spannuths, lessors, answered and filed a counterclaim for rent. Lind and Schwab answered the counterclaim and moved for summary judgment. The Spannuths moved to strike that motion, and subsequently filed an affidavit of defense to the motion for summary judgment. The trial court considered the various pleadings, heard arguments, took judicial notice of a zoning ordinance of River Forest, found the lease was executed with intent by the parties to use the property in violation of the ordinance and ordered both the complaint and counterclaim dismissed for want of equity. The Spannuths appealed, Lind and Schwab did not. This court affirmed that part of the order dismissing the complaint, but that part of the order dismissing the counterclaim was “reversed and remanded for further proceedings not inconsistent herewith.” 3 Ill.App.2d 112, opinion filed May 19, 1954. The mandate was filed September 20th and the hearing on the counterclaim set for September 28, 1954 “to determine the amount of rent accrued under the lease.” On this latter date the court heard testimony, found the amount of the rent due and entered the judgment from which this appeal was taken.
The complaint and counterclaim were dismissed for want of equity on the ground that the lease was illegal. This was a decision on the merits of both the complaint and the counterclaim. The summary judgment fell with the complaint and need no longer be considered since there was no appeal by Lind and Schwab. The relevant question before this court in the prior appeal was the validity of the order dismissing the counterclaim. This court decided that the lease was not illegal since it did not violate the zoning law. The effect of this decision was to set aside the order of dismissal of the counterclaim. This court then considered the counterclaim and the answer thereto and found no issue of fact raised since the only defense was the violation of the zoning ordinance. But that defense had already been vitiated. This court therefore remanded “with directions to enter judgment for the amount of the rent. . . .” It is this judgment which Lind and Schwab attack as being beyond the jurisdiction of this court. The grounds urged in the Supreme Court were (a) want of constitutional due process and (b) want of appellate jurisdiction. The first ground was eliminated by the transfer of the case to this court.
Lind and Schwab filed no petition for rehearing with respect to our previous opinion nor did they seek leave to appeal to the Supreme Court. But they argue that since the point is jurisdictional it may be made any time in any court. They argue that the judgment exceeded appellate jurisdiction and was therefore void; that the mandate based on the judgment is consequently void; and that the reinstatement of the case in the Superior Court was ineffective.
We think the prior judgment of this court was within this court’s jurisdiction. The final judgment of the trial court on the merits was reviewed in an exercise of appellate jurisdiction. The judgment was reversed and the cause remanded to enter judgment for rent. This is different from overruling a demurrer and ordering a writ to issue as in People ex rel. Lydston v. Hoyne, 262 Ill. 82; from ruling on a motion for new trial where the trial court had not done so in the first instance as in Goodrich v. Sprague, 376 Ill. 80; and from entering judgment on a verdict after setting aside a judgment notwithstanding the verdict as in Scott v. Freeport Motor Casualty Co., 379 Ill. 155.
The Hoyne case is the leading case on the question. There the trial court sustained a demurrer and entered judgment for the defendant. This court reversed and remanded. Thereafter, on stipulation, this court vacated its judgment and entered an order overruling the demurrer, “whereupon appellee elects to stand by his said demurrer . . .” and “ought to be required to sign the said information in the nature of a quo warranto . . . and he is hereby commanded to forthwith sign . . . the information ... in the nature of a quo warranto.” Order and judgment October 13, 1913, 36 Order Record 495, App. Ct., First Dist. Ill. This was a clear exercise of original jurisdiction and distinguishes that case from the instant case.
The remanding order in the decision of this court on the prior appeal was justified since the record disclosed no question of fact for decision. Electrical Contractors’ Ass’n of the City of Chicago v. A. S. Schulman Elec. Co., 391 Ill. 333, 346. Compare also the judgment in Bradley v. Fox, 7 Ill.2d 106, 109. Lind and Schwab argue that on a general remandment they would have had an opportunity to offer amendments to their answer to the counterclaim. This court presumes that they offered at the trial what defenses they had available. Especially is this so when their complaint, as their defense to the counterclaim, rested substantially on the alleged violation of the zoning ordinance; their motion for summary judgment implied that there was no triable issue of fact; and they took no appeal from the judgment dismissing their suit.
They contend that in any event the judgment of the Superior Court is void for want of jurisdiction over the subject matter since the remanding order was void and over their persons because the Spannuths gave only three days’ notice of filing the mandate instead of ten as required by the Civil Practice Act, Section 88(2) (Ill. Rev. Stat. 1953, Chap. 110, Sec. 212 [Jones Ill. Stats. Ann. 104.088]).
On September 16,1954, a few months after the filing of the opinion in the prior appeal, the Spannuths mailed notice to Lind and Schwab that on September 20th they would appear in the Superior Court and move for leave to file the mandate and to set a date for the hearing on the counterclaim. On September 20th leave was given, the mandate was filed, the hearing on the counterclaim was set and the judgment for rent followed.
Section 88(2) provides “upon the filing of such mandate in the trial court, the cause or proceeding shall be reinstated therein, upon ten days’ notice being given to the adverse party or his attorney.” Literally, this requires that at the time of filing the mandate ten days’ notice be given of the reinstatement of the cause. No notice is required under this section when the remandment is not for “new trial or hearing.” Boggiano v. Chicago Macaroni Mfg. Co., 118 Ill. App. 225.
The question of the necessity of the ten days’ notice has been before the Supreme Court and this court several times. In an 1855 case, Murray v. Whittaker, 17 Ill. 230, before the legislature spoke on the subject, the Supreme Court thought that the parties were bound to know that the cause had been remanded and it refused to reverse for want of notice. The court said there was no statute requiring notice and that it had no power to make rules for the circuit court. It suggested a rule, the substance of which the legislature in 1872 enacted into the law respecting notice.
Subsequently in 1884 the Supreme Court in dictum said that the notice was required to reinvest the trial court with jurisdiction of the person. Austin v. Dufour, 110 Ill. 85. Then in 1896 this court said the notice was “indispensable” (Taylor v. Brougham, 63 Ill. App. 283) relying on Austin v. Dufour. Later in 1906 the Supreme Court in Gage v. People ex rel. Hanberg, 223 Ill. 410, 415 struck down objections to defective notice, though it complied with the ten-day requirement, and said “the sole purpose of the statute ... is to advise the opposite party that the cause is to be re-instated in the trial court.” No reference was made to the case of Austin v. Dufour. In 1910 the Supreme Court in Snell v. Weldon, 243 Ill. 496 at page 516 said “the court . . . could not properly proceed to the trial . . . until the ten-day notice required by the Practice act was given to the opposite party” citing Austin v. Dufour. It thought the situation similar to a pending case before service on the defendant and it approved filing mere formal amendment prior to the notice. Then in 1913 the Supreme Court in People ex rel. Zilm v. Conway, 261 Ill. 26, 29 without referring to Austin v. Dufour said “no step could be taken in the cause . . . until it should be re-instated in pursuance of a statutory notice. . . .” The reversal was not on this ground, however.
In 1914 this court in Carlin v. Grand Trunk Western Ry. Co., 189 Ill. App. 489, decided failure to give notice was reversible error. It said this notice was like a new summons and in its absence the court had no jurisdiction over the person. The last word on the subject was written by this court in 1940 in Tracy v. Yost, 306 Ill. App. 578. There it was held the statutory notice could be waived since in Gage v. People ex rel. Hanberg the purpose was said to be advisory.
This court in Cowdery v. Northern Trust Co., 321 Ill. App. 243, 269 said that when notice to appeal is filed, the trial court is “ousted” of jurisdiction. Nevertheless the case is the same case in a different court. Reiter v. Illinois Nat. Casualty Co., 397 Ill. 141, 146. The attaching of jurisdiction over the ease in this court carries the jurisdiction of the parties, though for some matters the trial court retains jurisdiction, as for example in temporary alimony and support matters. We think that this is the effect of the provision in Section 74 of the Civil Practice Act that an appeal “shall constitute a continuation of the proceeding. . . .” (Ill. Rev. Stat. 1953, Chap. 110, Section 198 [Jones Ill. Stats. Ann. 104.074].) The trial court does not lose jurisdiction of the case nor of the parties during the pendency of the appeal. Especially where the plaintiff began the suit he is present before the court for all purposes so long as the court retained any jurisdiction. Perry v. Perry, 349 Ill. App. 116, 119. So when the case is remanded the suspension of the trial court’s jurisdiction is removed when the mandate is filed and the case reinstated. The jurisdiction of this court over the subject matter and the parties is released and the notice is to advise the adverse party of that fact. Judge Feinberg’s concurring opinion will cover this aspect of the case more thoroughly.
We conclude that the judgment of this court in the prior appeal did not exceed the jurisdiction of this court; that the notice required by Section 88(2) of the Civil Practice Act is not jurisdictional; that the trial court had jurisdiction over the persons of Lind and Schwab; and that the judgment entered was valid. This conclusion disposes of all points raised.
Judgment affirmed.
FEINBERG, J., specially concurring. LEWE, P. J., took no part.