Ford v. Ford (117 Ill. App. 502, 1905)

Mr. Justice Brown

delivered the opinion of the court.

We must reverse the order complained of and remand this cause to the Óircuit Court.

The obvious defect and error in the order of the Circuit Court are those which are apparent also in that order of the Probate Court, an appeal from which brought the matter into the Circuit Court for a trial de novo. These orders are too indefinite and uncertain. They mention no sum to be paid over to the petitioner, the foreign guardian; they do not find that there is any distributive share of “ proceeds of right of action arising out of the death of said Morton I. Ford.” They do not even name the administratrix. It is impliedly stated in the argument for appellant, and impliedly conceded in that of appellee, that no account had been filed in the Probate Court by the administratrix of Morton I. Ford when this order of the Circuit Court appealed from was made, or when the order in the Probate Court was made, and that consequently nowhere of record was there an ascertainment of the distributive share belonging to Nellie Catherine Ford (which the Circuit Court order provides for), or “ the distributive shares of said minor children ” (as the Probate Court order has it). Nothing appears in the record one way or the other as to this, but it does not matter. If any such account had been filed, no reference to it appears in the proceedings of the Circuit Court, and the order of that court omitting to state any definite sum to be turned over, or making any finding about it, cannot be sustained. It is “ without form and void.”

We think the authorities cited by appellant’s counsel are in point. Counsel for appellee say that money judgments which do not state the amount with certainty are not like the order appealed from in this case, xvhich is, he says, not a judgment, but “ an order on the administratrix to pay to the guardian the distributive share of the ward, and does not attempt to fix the amount.” We do not see the distinction. It is an order to pay money—and that it does not fix the amount is the very thing that makes it erroneous. Lawrence v. Fast, 20 Ill. 339; P., F. W. & C. R. R. Co. v. City of Chicago, 53 Ill. 81; Carpenter v. Sherfy, 71 Ill. 429.

Although our view of the matter above discussed, on which the court is a unit, is sufficient to dispose of this appeal, we think that as it must go back to the Circuit Court for another trial, we should notice other errors assigned and insisted on by the appellant. The contention made below, that the cause was, without sufficient showing of good cause, tried by the court out of its regular order on the docket, seems, although such action is assigned for error here, to be waived in this court by not being argued or insisted on. It need not, therefore, be discussed by us further than to say that although broad discretion is given to the trial court in the matter of advancing and trying a cause out of its regular order for good cause shown, and although it is true that such discretion will not be presumed by us to have been abused unless there is something in the record which shows such abuse or manifest injustice to the appellant, (Staunton Coal Co. v. Menk, 99 Ill. App. 254, affirmed in 197 Ill. 373,) the record here would be more satisfactory if it showed at least some order for good cause advancing the case, other than one merely overruling objections to its being immediately heard. This is not to say that because of this objection alone, even if it had been insisted on here, we should have reversed this judgment order, but it is not to pay too much ''respect to technicalities to insist on forms necessary to prevent looseness and confusion in legal proceedings. If the course taken was so taken on the assumption that this appeal from the Probate Court, necessitating a trial de novo in the Circuit Court, was not “ a regular cause ” on its docket, but a mere “ motion ” in some sense differing from such a cause, we do not think it justified. Such an assumption would be false. The appeal was a “ cause ” on the docket of the Circuit Court. It may well, however, have been