Agran v. Checker Taxi Co.
| Decision Date | 20 March 1952 |
| Docket Number | No. 32299,32299 |
| Citation | 105 N.E.2d 713,412 Ill. 145 |
| Parties | AGRAN v. CHECKER TAXI CO. |
| Court | Illinois Supreme Court |
Mural J. Winstin, and Mattew Steinberg, both of Chicago, for appellant.
Gottlieb & Schwartz, and Jesmer & Harris, all of Chicago (H. R. Begley, Chicago, of counsel), for appellee.
This case comes here on appeal from an order of the circuit court of Cook County denying plaintiff's motion to vacate its previous order dismissing the cause for want of prosecution. A constitutional question being raised, the cause is properly here for determination.
August 30, 1948, plaintiff, Abraham Agran, filed a complaint at law against the defendant, Checker Taxi Company, a corporation. Plaintiff asked damages for personal injuries sustained by reason of the negligent, careless and improper operation of defendant's taxicab on May 10, 1948, whereby plaintiff, a pedestrian, was struck and severely injured. The cause being called for trial on October 11, 1951, and the plaintiff failing to appear and prosecute his suit, the court ordered that the suit be dismissed for want of prosecution at plaintiff's costs. On October 25, 1951, plaintiff filed a motion to vacate the order of October 11, 1951, for the reason that the court entered an ex parte order dismissing the cause without notice being given to plaintiff by the clerk of the court five days prior to October 11, 1951, that such action was contemplated to be taken by the court on October 11 or any other time, as required by the statute known as 'An Act to amend Sections 48 and 50 of the 'Civil Practice Act', * * * as amended, and to add Section 50a thereto.' Laws 1951, p. 1707. This statute provides, in section 50a, Ill.Rev.Stat.1951, c. 110, § 174a, that no ex parte action shall be taken to dismiss a case for want of prosecution until every attorney of record has been notified at least five days by the clerk of the court that such action was contemplated on the date that such order was entered.
Thereafter, on November 1, 1951, defendant filed an answer to plaintiff's motion to vacate the order of dismissal, setting forth several objections to the constitutionality of the statute on which plaintiff relied as grounds for his motion to vacate. On November 2, 1951, the court entered its order denying the motion to vacate, declaring section 50a, added to the Civil Practice Act in 1951, to be unconstitutional and void for all the reasons assigned by the defendant.
It is fundamental, in order for the statute here invoked to be applicable, that this order of dismissal for want of prosecution must be an ex parte action. City National Bank & Trust Co. v. Davis Hotel Corp., 280 Ill.App. 247, defined an ex parte action as a judicial proceeding, order, injunction, etc., taken or granted at the instance and for the benefit of one party only and without notice to, or contest by, an person adversely interested. Certainly, this was an order entered in the absence of the plaintiff, but just as certainly the plaintiff was aware that the case was pending and had the duty to watch and appear when it was called. It is difficult to precisely fit this action into the confines of the above definition. The negligence here can hardly be excused as a lack of notice. It is the usual procedure for courts to dismiss cases for want of prosecution where the plaintiff fails to appear.
It is argued forcibly that the legislature intended a broader definition of 'ex parte action.' That may well be. The definition above, while the most positive in form, is not the only one accepted, some being so broad as to include any relief granted without an opportunity for the person against whom relief is sought to be heard. (Restatement, Torts, p. 674.) The legislature here may have intended any action taken without specific notice to the negligent party affording an opportunity to be heard.
It being the duty of the courts to sustain legislation wherever possible and to resolve all doubts in favor of its validity, it is incumbent upon us to assume the legislature intended a broad meaning be assigned the phrase. We are thus brought to the real objections to the act.
Article III of the constitution of the State of Illinois, S.H.A. provides: 'The powers of the government of this state are divided into three distinct departments-the legislative, executive and judicial; and no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.' Defendant urges that section 50a of the Civil Practice Act violates this constitutional provision.
In dividing the powers of government in this State into three separate departments, article III is declaratory of a basic principle of constitutional law. Each of the three departments is to perform the duties assigned to it and no department may exercise the powers properly belonging to either of the other two. People ex rel. Bernat v. Bicek, 405 Ill. 510, 91 N.E.2d 588. Section 1 of article VI of the constitution vests the judicial power in the courts provided in or permitted to be created by the constitution. While the constitution does not define what constitutes judicial power, it is an exclusive and exhaustive grant vesting all such power in the courts. People v. Bruner, 343 Ill. 146, 175 N.E. 400; People v. Callopy, 358 Ill. 11, 192 N.E. 634. If the power is judicial in its nature, it necessarily follows that the legislature is expressly prohibited from exercising it. People v. Bruner, 343 Ill. 146, 175 N.E. 400.
The statute here objected to is one wherein the General Assembly attempts to regulate te procedure of the courts in the administration of their judicial business. Prior to the adoption of the United States constitution, courts exercised complete power in the control of their own procedure. The courts promulgated rules of procedure as an attribute of their...
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People v. Adams
...497 N.E.2d 763.) Doubts concerning a statute's constitutionality will be resolved in favor of its validity. (Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 148, 105 N.E.2d 713.) Our task here is to determine only whether the challenged legislation is constitutional, and not whether it nece......
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People ex rel. Sheppard v. Money
...a duty to sustain legislation wherever possible and resolve all doubts in favor of constitutional validity. Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 148, 105 N.E.2d 713. Statutory Basically, the Act provides three ways to obtain an order for income withholding once the court has ente......
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People v. Walker
...80 Ill.Dec. 76, 464 N.E.2d 1059; People v. Davis (1982), 93 Ill.2d 155, 161, 66 Ill.Dec. 294, 442 N.E.2d 855; Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 149, 105 N.E.2d 713. We are mindful in our analysis that, like all legislative enactments, a strong presumption of constitutionality ......
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...invalid attempted delegation of legislative or administrative decisionmaking to the judiciary); see also Agran v. Checker Taxi Co., 412 Ill. 145, 149, 105 N.E.2d 713 (1952) ("If the power is judicial in its nature, it necessarily follows that the legislature is expressly prohibited from exe......