Johnson v. Theodoron

Decision Date16 February 1927
Docket NumberNo. 17660.,17660.
Citation324 Ill. 543,155 N.E. 481
PartiesJOHNSON et al. v. THEODORON.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Action by Bennett J. C. Johnson and another against Peter D. Theodoron. From a judgment for plaintiffs, defendant appeals.

Affirmed.Appeal from Superior Court, Cook County; Hugo Pam, Judge.

Webster, Holmes & Holmgren, of Chicago (Daniel Webster, of Chicago, of counsel), for appellant.

Leesman & Roemer, of Chicago, for appellees.

THOMPSON, J.

This appeal is from a judgment entered in the superior court of Cook county in favor of appellees, Bennett J. C. Johnson and Ellis A. W. Johnson, against appellant, Peter D. Theodoron, in an action of assumpsit brought by appellees against appellant from damages alleged to have been suffered by appellees for failure on the part of appellant to perform an option for the sale of real estate. The declaration in the action was filed June 22., 1923, and the appearance of Peter D. Theodoron and Webster, Holmes & Holmgren as attorneys for appellant was filed July 2, 1923. Issue was joined, and the cause was placed on the trial call for November 28, 1924. It was held on the call until January 5, 1925, when one of the attorneys for appellant appeared in court and stated that Daniel Webster, another of appellant's attorneys, was a member of the General Assembly and was attending the sessions in Springfield except on Mondays and Fridays, and asked that the case be specially set at the head of the call for any Monday or Friday. In accordance with this request the court set the case specially at the head of the call for Friday, January 16, 1925, and thereafter, at the request of one of the attorneys for appellant, the case was specially set at the thead of the call on three subsequent Fridays, the last setting being March 13. When the case was called for trial on that day one of the attorneys for appellant filed the following affidavit:

Daniel Webster, being first duly sworn on oath, deposes and says that he is an attorney at law duly admitted to practice before the courts of this state, is a member of the firm of Webster, Holmes & Holmgren, and is a member of the senate of the Fifty-Fourth General Assembly of the state of Illinois, having been elected from the Twenty-Fifth senatorial district of Illinois; that said General Assembly is now in actual session, having begun on the 7th day of January, A. D. 1925, and will be in session until on or about the 30th day of June, A. D. 1925.

‘Affiant further states that prior to the filing of said suit, and at the time of the filing of said suit, this affiant was employed by the defendant, Peter D. Theodoron, as his attorney, and that this affiant has continually been the attorney for the defendant in this cause.

‘Affiant further states that said suit is a suit at law pending before this honorable court, which is a court of this state.

‘Affiant further states that he is in actual attendance on the sessions of the said Fifty-Fourth General Assembly, and that his attendance as attorney for the defendant in the above-entitled cause is necessary to a fair and proper trial of same.

‘Affiant further states that by virtue of the statute in such case made and provided, the above-entitled cause should be continued until ten days after the adjournment of the Fifty-Fourth General Assembly, which adjournment will take place on or about the 30th day of June, A. D. 1925.

‘Affiant further states that he is now in actual attendance upon the sessions of the Fifty-Fourth General Assembly of Illinois.

‘Further, affiant sayeth not.

Daniel Webster.’

The court refused to continue the case until ten days after the adjournment of the Fifty-Fourth General Assembly and reset the case at the head of the call for Monday, April 6, 1925. Friday, April 10, 1925, the case was called for trial. Elmer M. Leesman was in court for appellees and Elmer N. Holmgren was there for appellant. The motion for continuance until after the adjournment of the General Assembly was renewed and again denied. The court directed the attorneys to proceed with the trial and ordered the jury impaneled. Holmgren objected to the court proceeding on the ground that it was without jurisdiction to try the cause, and refused to participate in the trial except to object to the swearing of each witness and to move the striking of the testimony of each witness. Evidence was introduced on behalf of the appellees, and the jury returned a verdict fixing their damages at $3,180. A motion for a new trial and one in arrest of judgment were overruled and judgment was entered on the verdict. This appeal followed.

Section 66 of the Practice Act (Smith-Hurd Rev. St. 1925, c. 110), provides:

‘In all suits or proceedings, either civil or criminal, at law or in equity, pending in any court of this state at any time when the General Assembly is in session, it shall be a sufficient cause for a continuance if it shall appear to the court, by affidavit, that any party applying for such continuance, or any attorney, solicitor or counsel of such party, is a member of either house of the General Assembly, and in actual attendance on the sessions of the same, and that the attendance of such party, attorney, solicitor or counsel, in court, is necessary to a fair and proper trial of such suit; and, on the filing of such affidavit, the court shall continue such suit; and when so continued, no trial or other proceedings shall be had therein until the adjournment of the General Assembly, nor within ten days thereafter. Such affidavit shall be sufficient if made at any time during the session of the General Assembly, showing at the time of making the same, such party, attorney, solicitor or counsel is in actual attendance upon such session of the General Assembly.’

Section 67 provides that the foregoing section shall not apply to cases where the attorney was not employed in the case prior to the opening of the session of the General Assembly.

Appellant seeks to reverse the judgment on the ground that the court was without jurisdiction to enter any order at the time of his motion for continuance...

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24 cases
  • Poole & Creber Market Co. v. Breshears
    • United States
    • Missouri Supreme Court
    • February 21, 1939
    ...rights as to due process of law. People v. Rose, 207 Ill. 352; People v. Falk, 310 Ill. 282; People v. Love, 310 Ill. 558; Johnson v. Throdown, 324 Ill. 543; Winter v. Barrett, 352 Ill. 441; Heiner v. Donnan, 285 U.S. 327; Newland v. Marsh, 19 Ill. 376; C., M. & St. P. Ry. v. Minnesota, 134......
  • Poole & Creber Market Co. v. Breshears
    • United States
    • Missouri Supreme Court
    • February 21, 1939
    ... ... process of law. People v. Rose, 207 Ill. 352; ... People v. Falk, 310 Ill. 282; People v ... Love, 310 Ill. 558; Johnson v. Throdown, 324 ... Ill. 543; Winter v. Barrett, 352 Ill. 441; ... Heiner v. Donnan, 285 U.S. 327; Newland v ... Marsh, 19 Ill. 376; C., ... ...
  • People ex rel. Schacht v. Main Ins. Co.
    • United States
    • United States Appellate Court of Illinois
    • April 21, 1983
    ...the judiciary from determining in the first instance the admissibility of the evidence, is unconstitutional, citing Johnson v. Theodoron (1927), 324 Ill. 543, 155 N.E. 481. Since the court will not rule on the constitutionality of a statute unless necessary it is important to determine if t......
  • Collier v. Poe
    • United States
    • Texas Court of Criminal Appeals
    • May 20, 1987
    ...upon the sessions of a legislative body was not a cause for continuance which a court was bound to recognize. Johnson v. Theodoron, 324 Ill. 543, 155 N.E. 481, 483 (1927). Thus absence of counsel in attendance in the Legislature is not in the absence of statute, a sufficient cause for conti......
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