O'Hare v. Chicago, M.&N.R. Co.

CourtIllinois Supreme Court
Writing for the CourtSHOPE
Citation28 N.E. 923,139 Ill. 151
PartiesO'HARE v. CHICAGO, M. & N. R. Co.
Decision Date31 October 1891

139 Ill. 151
28 N.E. 923

O'HARE
v.
CHICAGO, M. & N. R. Co.1

Supreme Court of Illinois.

Oct. 31, 1891.


Appeal from Cook county court; RICHARD PRENDERGAST, Judge.

Petition for the condemnation of land for railroad purposes. Mary O'Hare, one of the owners of the land to be taken, appeals. Affirmed


[139 Ill. 153]McArdle & Wheelock, for appellant.

E. H. Gary, for appellee.


[139 Ill. 154]SHOPE, J.

Appellee filed its petition in the county court of Cook county, August 14, 1889, alleging that it is a corporation organized under the laws of Illinois, and has power to construct and operate, etc., a railroad in Illinois, and to take and appropriate lands for right of way, etc., and has located its line of railroad over certain lots, describing them; that Mary O'Hare and Edward O'Hare are the owners thereof; that certain persons named are in possession as tenants; that it has been unable to agree with said owners and occupants as to the compensation to be paid; and prays that just compensation be ascertained conformable to law, etc. April 3, 1890, appearance of Mary O'Hare was duly entered, and the case set for hearing April 16, 1890.

On the last-named day, appellant, by her counsel, objected to E. H. Gary, who appeared as attorney for the petitioning company, being permitted to practice as an attorney in the county court of Cook county, or to act as attorney in said cause in said court, for the reason that he was then judge of the county court of Dupage county, and in the habit of presiding in the court in which this cause was depending. Appellant offered to produce the record of Cook county court, showing that Judge Gary had presided in that court, which was waived. A colloquy ensued between court and counsel, from which it appears that Judge Gary had a law-office in Chicago, and was in regular practice there, and had, at the request of the county judge of Cook county, [139 Ill. 155]presided in that court in the trial of particular cases; that there was no arrangement for the trial of cases by him in the future; that, when requested in the past to try particular cases, he would consent or refuse as his business occupations would permit. The court overruled the motion. It is insisted that the attorney fell within the prohibition of section 10, c. 13, Rev. St., which is as follows: ‘No person who holds a commission as a justice of the supreme court, or as judge of any court of record, shall be permitted to practice as an attorney and counselor at law in the court in which he presides.’ Any county judge in the state, in case of absence, death, resignation, or inability of the judge of the county court in any county, may hold the same, and perform all the duties of the judge thereof, during such absence, vacancy, or disability. Act 1885, (3 Starr & C. St. p. 152.) So, also, county judges may interchange with each other as circuit judges may do, and ‘hold court for each other, and perform each other's duties, when they find it necessary or convenient.’ Act 1879, (1 Starr & C. St. p. 731.) While a judge was so presiding, he would manifestly be inhibited from practicing as an attorney therein. The practice is one not to be commended, because of the tendency to bring the administration of the law into disrepute and contempt; yet we think the mere fact that at some time in the past-how remote does not appear-the judge had presided in particular cases will not necessarily disqualify him to appear in the court as an attorney. There is no pretense that he had or would preside at that term of court. At the term in question he had no control of the records of the court, no juror or officer was subject to his control or influence, so far as appears from this record, nor were any facts set up in support of the motion, showing, or tending to show, that by reason of his having presided in the court appellant would be prejudiced if he was permitted to appear as attorney for appellee. We are of the opinion that, under the facts [139 Ill. 156]shown, the

[28 N.E. 924]

attorney here sought to be excluded did not fall within the statutory inhibition.

It is next urged that the court erred in permitting counsel for appellee, over the objection of appellant, to ask of the jurors, upon their voir dire, if they knew Mr. Alexander Sullivan. Upon objection being made, and counsel for appellee insisting that he was advised Mr. Sullivan was interested, the court, counsel, plaintiff, and representatives of appellee retired out of the hearing of the jury, and the court heard evidence touching Mr. Sullivan's connection with the case, and as to the propriety of the question. It will be unnecessary to detail what there occurred. The result was that the court overruled the objection, and permitted the question to be asked of each juror, over the objection of appellant. The only proper purpose of the question was to enable counsel to determine whether he desired to exercise a peremptory challenge. It was assumed by counsel, upon alleged information, that Sullivan was directly or indirectly interested as attorney in the case; and it is not perceived why the court, in the exercise of a sound discretion, might not permit the inquiry for the purpose indicated. It cannot be presumed, in the absence of any fact going to the jury showing, or tending to show, Mr. Sullivan's connection with the case, or some improper act of his in connection therewith, or from the fact of his connection with the case, that prejudice would be created in the minds of the jurors. If appellant feared such result, it would have been entirely competent for her to have asked an instruction, and it would have been the duty of the court to have given it, repelling any presumption prejudicial to her or her cause that might arise because of the question.

It is next urged that the...

To continue reading

Request your trial
65 practice notes
  • Washington Water Power Co. v. Waters
    • United States
    • United States State Supreme Court of Idaho
    • 28 Marzo 1911
    ...457, 110 Am. St. 579, 51 S.E. 485; Kountze v. Proprietors of Morris Aqueduct, 58 N.J.L. 303, 33 A. 252; O'Hare v. Chicago etc. Ry. Co., 139 Ill. 151, 28 N.E. 923; Chicago & N.W. Ry. Co. v. Morehouse, 112 Wis. 1, 88 Am. St., note pp. 941-946, 87 N.W. 849, 56 L. R. A. 240; Kansas & T.......
  • Postal Tel. Cable Co. of Utah v. Oregon S.L.R. Co.
    • United States
    • Supreme Court of Utah
    • 10 Mayo 1901
    ...21 S.W. [23 Utah 485] 884; Englewood Connecting R. Co. v. Chicago & E. I. R. Co., 117 Ill. 611, 6 N.E. 684; O'Hare v. Railroad Co., 139 Ill. 151, 28 N.E. 923; Stark v. Railroad Co., 43 Iowa 501; Peavey v. Railroad Co., 30 Me. 498; Fall River Iron Works Co. v. Oil Colony & F. R. R. C......
  • McLemore v. Alabama Power Co., 5 Div. 829
    • United States
    • Supreme Court of Alabama
    • 10 Abril 1969
    ...R.R. Co. v. State Tax Dept., 112 N.J.L. 5, 169 A. 489; Rose v. City of Taunton, 119 Mass. 99, and O'Hare v. Chicago, etc., R.R. Co., 139 Ill. 151, 28 N.E. 923. 'A witness who has given his opinion as to value may state the reasons for his opinion, and he may of course state as such reasons ......
  • Rose v. Magro, 6 Div. 468.
    • United States
    • Supreme Court of Alabama
    • 24 Octubre 1929
    ...authorities: Stone v. Monticello Const. Co., 135 Ky. 659, 117 S.W. 369, 40 L. R. A. (N. S.) 978, 21 Ann. Cas. 640; O'Hare v. Railroad Co., 139 Ill. 151, 28 N.E. 923; Bridge Works v. Pereira, 79 Ill.App. 90; Nat'l Bank, etc., v. Romine, 154 Mo.App. 624, 136 S.W. 21; Fowlie v. McDonald, Cutle......
  • Request a trial to view additional results
64 cases
  • Washington Water Power Co. v. Waters
    • United States
    • United States State Supreme Court of Idaho
    • 28 Marzo 1911
    ...457, 110 Am. St. 579, 51 S.E. 485; Kountze v. Proprietors of Morris Aqueduct, 58 N.J.L. 303, 33 A. 252; O'Hare v. Chicago etc. Ry. Co., 139 Ill. 151, 28 N.E. 923; Chicago & N.W. Ry. Co. v. Morehouse, 112 Wis. 1, 88 Am. St., note pp. 941-946, 87 N.W. 849, 56 L. R. A. 240; Kansas & T. Coal Ry......
  • Postal Tel. Cable Co. of Utah v. Oregon S.L.R. Co.
    • United States
    • Supreme Court of Utah
    • 10 Mayo 1901
    ...359, 21 S.W. [23 Utah 485] 884; Englewood Connecting R. Co. v. Chicago & E. I. R. Co., 117 Ill. 611, 6 N.E. 684; O'Hare v. Railroad Co., 139 Ill. 151, 28 N.E. 923; Stark v. Railroad Co., 43 Iowa 501; Peavey v. Railroad Co., 30 Me. 498; Fall River Iron Works Co. v. Oil Colony & F. R. R. Co.,......
  • McLemore v. Alabama Power Co., 5 Div. 829
    • United States
    • Supreme Court of Alabama
    • 10 Abril 1969
    ...R.R. Co. v. State Tax Dept., 112 N.J.L. 5, 169 A. 489; Rose v. City of Taunton, 119 Mass. 99, and O'Hare v. Chicago, etc., R.R. Co., 139 Ill. 151, 28 N.E. 923. 'A witness who has given his opinion as to value may state the reasons for his opinion, and he may of course state as such reasons ......
  • Rose v. Magro, 6 Div. 468.
    • United States
    • Supreme Court of Alabama
    • 24 Octubre 1929
    ...authorities: Stone v. Monticello Const. Co., 135 Ky. 659, 117 S.W. 369, 40 L. R. A. (N. S.) 978, 21 Ann. Cas. 640; O'Hare v. Railroad Co., 139 Ill. 151, 28 N.E. 923; Bridge Works v. Pereira, 79 Ill.App. 90; Nat'l Bank, etc., v. Romine, 154 Mo.App. 624, 136 S.W. 21; Fowlie v. McDonald, Cutle......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT