Harrell v. Summers
| Decision Date | 09 November 1961 |
| Docket Number | No. 61-M-6,61-M-6 |
| Citation | 178 N.E.2d 133,32 Ill.App.2d 358 |
| Parties | John R. HARRELL, Plaintiff-Appellant, v. Ray SUMMERS et al., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Unger, Litak & Groppi, Danville, for appellant.
Smith, McCollum & Riggle, Flora, for appellees.
This cause arises as the result of a libel action which was filed in the Circuit Court of Clay County. We had considered one phase of this case previously (Harrell v. Summers, 28 Ill.App.2d 282, 171 N.E.2d 248), in which we determined that the order of the Circuit Court under Rule 19-5(2), Ill.Rev.Stat.1959, c. 110, § 101.19-5(2), denying a motion to compel oral answers and authorizing a deposition in whole or in part on written questions, was not a final and appealable order.
The complaint, as amended, charged that defendants had circulated a document in or about Louisville, Illinois, falsely stating that plaintiff was insane or using words of like meaning. Defendants filed a motion for summary judgment alleging that the only documents signed by any of the defendants in relation to plaintiff's sanity was one entitled 'Petition for Commitment, Mentally Ill or in Need of Mental Treatment,' which is absolutely privileged. Attached to the motion was an affidavit of the State's Attorney that he conferred with various persons regarding plaintiff's mental condition and directed his secretary to prepare the customary petition, which was not distributed or circulated outside of his office. The secretary's affidavit corroborated this statement. An affidavit of all the defendants also stated this was the only document ever signed by any of them and that it was never removed from the State Attorney's office, by any of the defendants.
Plaintiff filed a motion to strike the motion for summary judgment. This motion was denied and summary judgment was granted in favor of defendants. Plaintiff now appeals from the order granting summary judgment, and also contends that the Trial Court likewise erred in its earlier ruling referred to in the previous case hereinabove cited, by denying the taking of discovery depositions orally.
It is the position of defendants that since plaintiff filed no counter-affidavits, the facts stated in the supporting affidavits and corroborated by depositions filed in support of the motion, established that the document alleged to be libelous was never circulated or published, but was a legal document prepared and signed in the State Attorney's office, and was therefore absolutely privileged.
The Civil Practice Act in Section 57, authorizes the entry of summary judgment in any proper case, and the pleadings on file are not conclusive if there are no disputed questions of fact, except those made by the pleaders (1961 Illinois Revised Statutes, Chapter 110, Section 57, and Section 101.15; St. Louis Fire & Marine Insurance Co. v. Garnier, 24 Ill.App.2d 408, 164 N.E.2d 625; Porter v. Miller, 24 Ill.App.2d 424, 164 N.E.2d 601). As stated in the St. Louis Fire & Marine case herein cited, where plaintiff's affidavits are sufficient, entry of summary judgment is not prevented by reason of the fact that defendant has filed pleadings which on their face set up a good defense. Defendant had an opportunity in that case to file counter-affidavits and failed to do so. Under the circumstances there was no conflict as to the facts and the Court is not required to look to unverified pleadings for facts in...
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