The opinion
Cartwright, Hand and Dunn, JJ., dissenting:
The appeal removed the cause to this court and deprived the circuit court and the judge thereof of jurisdiction in the cause and of power to make any order or take any step in the litigation until the cause should be reinstated in that court. Section 113 of the Practice act provides the method of re-investing trial courts with jurisdiction of a cause after a reversal and remandment, and questions as to what may be done in a suit before service of summons have no relation to the power of the court or judge to proceed in such a case. Section 113 provides, that upon a transcript of the order of the Supreme Court remanding the cause being filed in the court in which the cause was originally tried, and not less than ten days’ notice thereof given to the adverse party or his attorney, the cause shall be re-instated therein. That language can mean nothing else than that the cause is re-established in the court from which it was removed only by filing the transcript and giving the notice. Until the cause is so reinstated it cannot, in our opinion, be said to be pending - in the trial court and any order in the cause would be void for want of jurisdiction. That is the effect of the decision in Austin v. Dufour, 110 Ill 85, and no distinction was there made between the order permitting an amendment and the proceedings in term time. Of course, if a suit is not re-instated in a court so as to give jurisdiction in term time, there can be no power in the judge to malee an order in vacation. The question in this case is whether the circuit court obtained jurisdiction of the minor by the vacation order, and if it did not, the want of jurisdiction could not be waived by the minor or his guardian ad litem. The fact that an objection to the amendment could not have been successfully interposed in a court or before a judge having jurisdiction affords no aid in deciding whether there was jurisdiction to make any order in the case. We think the judge had no jurisdiction to make the order until the cause was re-instated, and therefore the court had no jurisdiction of the infant, who was a necessary party.