Kehrer v. Kehrer
| Decision Date | 14 December 1960 |
| Docket Number | Gen. No. 60017 |
| Citation | 28 Ill.App.2d 296,171 N.E.2d 239 |
| Parties | Russell KEHRER, Elmer Kehrer, Rachel Renth, Ruth Boade and Caroline Christ, Plaintiffs-Appellants, v. Erwin KEHRER, Carl Kehrer and Roland Kehrer, Individually and as Executor of the Last Will and Testament of Joseph Kehrer, Deceased, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
McGlynn & McGlynn, East St. Louis, for appellants.
Meryl T. Schroeder, Mascoutah, for appellees.
This was an action by plaintiffs to contest the will of Joseph Kehrer, deceased. It was the first case on the trial call before a jury ordered to convene on Monday, July 13, 1959 in the Circuit Court of Clinton County. On the morning of that day, plaintiff's attorney, who lived about 45 miles from the courthouse, while preparing to leave for court, unexpectedly became violently ill. The clerk of the court was contacted by telephone and advised of the attorney's condition and was requested to notify the judge and defendants' counsel upon their arrival. When defendants' counsel arrived at the courthouse, he called plaintiffs' counsel, and was advised that plaintiffs' counsel was too sick to get to court. Plaintiffs' attorney then talked by telephone to one of the plaintiffs, told him of his condition, and asked him to request a continuance from the court. Defendants' attorney reported the matter to the trial judge upon the latter's arrival at the courtroom.
The trial judge called the case for trial, whereupon defendants' counsel obtained leave of court to call plaintiffs' attorney by telephone. This he immediately did, and plaintiffs' counsel advised that he still could not leave his home and that none of the other members of his law firm were familiar with the case. Upon making a report of this telephone conversation to the court, defendants' counsel was directed by the court to make a short record. One of the plaintiffs personally requested the court to continue the case of the grounds of his attorney's illness. The court denied the motion for continuance and entered an order of dismissal.
Plaintiffs filed their motion to vacate and set aside the dismissal order, which motion was supported by the affidavit of the trial attorney. No counter-affidavits were filed. After denial of this motion, this appeal was perfected.
The only question before this court is whether or not the trial judge abused his discretion in refusing to delay the trial of this case due to plaintiffs' attorney's unexpected illness on the morning of trial.
It is undisputed that a motion for continuance, except where it is based upon a statutory cause, is addressed to the sound judicial discretion of the trial judge. Condon v. Brockway, 157 Ill. 90, 41 N.E. 634. But this discretion must be exercised judiciously, and not arbitrarily or capriciously. Roberts v. McDaniel, 22 Ill.App.2d 485, 161 N.E.2d 47.
We have attempted in recent decisions to lay down basic rules applicable to cases involving applications for continuances and defaults. These rules are based upon statutory precept and broad principles enunciated by the Supreme Court. In Roberts v. McDaniel, supra, we said that the court should not refuse a continuance when the ends of justice clearly require it. In Widucus v. Southwestern Electric Cooperative, Inc., 26 Ill.App.2d 102, 167 N.E.2d 799, a case involving the entry of a default judgment, we stated that the discretion will be properly invoked if it is based upon principles of right and wrong and is exercised for the prevention of injury and the furtherance of justice. We said further that the spirit of the Civil Practice Act, Ill.Rev.Stat. c. 110, § 1 et seq., is that controversies be speedily determined according to the substantive rights of the parties, and that the question of...
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...636 N.E.2d 1052 (1994). Sickness of the trial attorney might be sufficient grounds for a temporary postponement. Kehrer v. Kehrer, 28 Ill.App.2d 296, 299, 171 N.E.2d 239 (1960). A motion for continuance based upon the illness of a party must be supported by competent medical testimony stati......
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...to be a valid reason for a continuance. (Nowaczyk v. Welch (1969), 106 Ill.App.2d 453, 245 N.E.2d 894; See also Kehrer v. Kehrer (1960), 28 Ill.App.2d 296, 171 N.E.2d 239.) This justification for a continuance logically extends to the illness of a member of the attorney's immediate family. ......
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Hermann v. Hermann
...except where it is based upon a statutory cause, is addressed to the sound discretion of the trial court. (Kehrer v. Kehrer (1961), 28 Ill.App.2d 296, 171 N.E.2d 239.) Once a case has reached the trial stage, the moving party must give especially grave reasons for the continuance because of......
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Lynch v. Illinois Hospital Services, Inc.
...Widicus case, was approved by In re Estate of Hoyman, 27 Ill.App.2d 438, 442, 170 N.E.2d 25. In the case of Kehrer v. Kehrer, 28 Ill.App.2d 296, page 298, 171 N.E.2d 239, page 240, the court referring to the Widicus case 'In Widicus v. Southwestern Electric Cooperative, Inc., 26 Ill.App.2d ......