Hoffmann v. Hoffmann

• Decision Date: 21 June 1968
• Docket Number: No. 40942,40942
• Citation: 40 Ill.2d 344,239 N.E.2d 792
• Parties: Elizabeth HOFFMANN, Appellee, v. Eugene V. HOFFMANN, Appellant.
• Court: Illinois Supreme Court

Page 792

239 N.E.2d 792

40 Ill.2d 344

Elizabeth HOFFMANN, Appellee, v. Eugene V. HOFFMANN, Appellant.

No. 40942.

Supreme Court of Illinois.

June 21, 1968.

Rehearing Denied Sept. 24, 1968.

Arthur Abraham, Benjamin B. Goldberg and Louis Goldberg, Chicago, for appellant.

Anagnost & Anagnost, Chicago (Catherine Cook Anagnost, Gerald M. Chapman and Edmond Mosley, Chicago, of counsel), for appellee.

WARD, Justice.

Eugene V. Hoffmann, the appellant, was granted a divorce in the circuit court of Cook County on his cross-complaint for divorce against Elizabeth Hoffmann, his wife and the appellee, on the ground of extreme and repeated cruelty. Elizabeth Hoffmann appealed from that judgment to the Appellate Court for the First District, contending Inter alia, that the circuit court had erred in denying her petition for a change of venue. The appellate court agreed and reversed and remanded the cause to the circuit court of Cook County. (86 Ill.App.2d 374, 230 N.E.2d 77.) We granted the appellant's petition for leave to appeal.

On April 13, 1964, Elizabeth Hoffmann filed a complaint for divorce, injunctive relief and alienation of affections, and on September 16, 1964, the appellant presented his cross-complaint for divorce. On October 2, 1964, on the motion of the appellant, the cause was set for trial before Judge Robert Hunter. On October 26, 1964, Judge Hunter continued the matter on the motion of the appellee and reset it for trial on December 1, 1964, and included in the order the notation 'final continuance.'

On December 1, 1964, the appellee presented another motion for continuance asserting that she was unprepared for trial since she had been unable to complete certain pretrial discovery actions. The motion was denied and Judge Hunter entered an order assigning the case to Judge James Felt for trial.

Later that morning the appellee renewed her motion before Judge Felt for a continuance, which motion was denied. At the appellee's request, however, Judge Felt held over the proceedings until 2:30 P.M. When the case was then called the appellee moved for a change of venue alleging that she could not receive a fair trial before Judge Felt because the judge was prejudiced against her and this prejudice had first come to her knowledge on that day.

Part of the colloquy on the hearing of the motion was:

'The Court: You say you think it is well taken. (The motion for a change of venue.) Will you state the reasons why you think it is well taken?

Mr. Jares: (For the appellee) By reason of my client's insistence that there be a change of venue, because of the sudden assigning of this case, your Honor, and the fact we are on trial. We are not ready, we have asked for a continuance and we do not feel we can get a fair and impartial trial.

Mr. Abraham: (For the appellant) That statement alone--

Mr. Jares: I am not making this, your Honor, and if you wish to question Mrs. Hoffmann, of course you can.

The Court: Well, counsel, you present a petition, say you will not receive a fair and impartial trial in this court, and I would like to hear the reason why she believes she would not receive a fair and impartial trial.

Mr. Jares: Would you like to call Mrs. Hoffmann?

The Court: Yes.

Mr. Jares: Mrs. Hoffmann, will you come forward? Swear the witness.'

The movant and appellee, Mrs. Hoffmann, in substance, testified that she was not prepared to go to trial and that she was seeking a continuance from the trial court. We believe that the appellate court in its opinion aptly observed: 'It is apparent from plaintiff's (appellee's) testimony that plaintiff had no knowledge of prejudice on the part of the court, and the purpose of the petition for change of venue was to obtain a further continuance.' The appellate court concluded that 'where the petition is proper in form, no inquiry may be made as to the truth of the allegation of prejudice.'

We do not quarrel with the statement of the appellate court that a judge should not inquire into the basis of the allegation of prejudice on his part in a motion for a change of venue. This court has declared that typically if the petition for change of venue complies with the statute (Ill.Rev.Stat.1967, chap. 146, par. 1 et seq.), the right to a change of venue, in both criminal and civil cases is absolute. (See People v. Catalano, 29 Ill.2d 197, 193 N.E.2d 797; People v. Beamon, 24 Ill.2d 562, 182 N.E.2d 656; People v. Stewart, 20 Ill.2d 387, 169 N.E.2d 796, and People v. Davis, 10 Ill.2d 430, 140 N.E.2d 675.) In People v. Shiffman, 350 Ill. 243, 246, 182 N.E. 760, 762, the court observed: 'It is not for the judge to determine whether or not he entertains prejudice against the defendant, * * * when a defendant in apt time brings himself within the terms of the statute, the trial judge has no discretion as to whether or not a change of venue will be granted. He must allow it as a matter of right. He cannot question the truthfulness or the good faith of the charge of prejudice. When the statute has been complied with, the trial judge loses all power and authority over the case except to make the necessary orders to effectuate a change of venue.'

However, where it appears that the petitioner has by motions for continuances or other conduct attempted to delay or avoid trial prior to his motion for change of venue, the trial court can inquire into the good faith of the petitioner's motion. (See People v. Mosley, 24 Ill.2d 565, 569, 182 N.E.2d 658.) If it becomes apparent that the request is made only to delay or avoid trial, the denial of the petition for change of venue does not constitute error. People v. Beamon, 24 Ill.2d 562, 182 N.E.2d 656; People v. Stewart, 20 Ill.2d 387, 169 N.E.2d 796; People v. Davis, 10 Ill.2d 430, 140 N.E.2d 675.

Here, appellee had previously sought continuances before Judge Hunter, one of which was granted and noted as 'final continuance', and the other of which was denied on December 1, 1964. Later on December 1, Judge Felt also denied a motion for a continuance. Considering these prior proceedings and the time and manner in which appellee presented the petition, Viz., immediately following a denial of a continuance, we deem it was not inappropriate for the trial judge to seek to determine if the motion was made to delay trial. The statements of the appellee's trial counsel and the...