People ex rel. Reiter v. Lupe

• Decision Date: 18 January 1950
• Docket Number: No. 31214,31214
• Parties: PEOPLE ex rel. REITER v. LUPE, Judge.
• Court: Illinois Supreme Court

Page 824

89 N.E.2d 824

405 Ill. 66

PEOPLE ex rel. REITER v. LUPE, Judge.

No. 31214.

Supreme Court of Illinois.

Jan. 18, 1950.

John A. Brown, of Chicago, for petitioner.

Vogel & Bunge and Heineke & Conklin, all of Chicago, and A. M. Fitzgerald, of Springfield, for respondent.

DAILY, Justice.

This is an original action in mandamus instituted to require respondent, Judge John J. Lupe, of the superior Court of Cook County, to expunge from the record an order he entered on May 11, 1949, in a proceeding wherein petitioner was plaintiff and others hereinafter named were defendants. The cause is submitted to us on the petition filed in this court and the answer of respondent, the subject matter of the controversy consisting entirely of court records.

The basic action, from which this mandamus proceeding stems, was an action for an accounting commenced by the petitioner in 1936 against Illinois National Casualty Company, a corporation, Claude H. Barr, Arthur M. Fitzgerald, Ernest Palmer, and Fidelity and Deposit Company of Maryland, a corporation, defendants. On April 11, 1940, after the issues were joined by the pleadings, Judge McKinlay of the superior court referred the cause to master in chancery John F. O'Toole to take testimony and report the same to the court with his conclusions of law and fact. At the close of the plaintiff's evidence the defendants filed a motion for a finding in their favor and to dismiss the suit under section 64(4) of the Civil Practice Act, Ill.Rev.Stat. 1945, chap. 110, par. 188. On the report and recommendation of the master, Judge McKinlay granted the motion and dismissed the suit. Plaintiff, Reiter, took an appeal to Appellate Court, First District, which court, in a decision reported, Reiter v. Illinois National Casualty Co., 328 Ill.App. 234, 65 N.E.2d 830, affirmed the dismissal as to Fidelity and Deposit Company of Maryland, but reversed it as to the other defendants. The Appellate Court found that plaintiff had made out a case for affirmative relief, and held that defendants, by virtue of their motion at the close of plaintiff's evidence, had submitted the case on its merits and waived their right to present evidence.

The remaining defendants perfected appeals to this court. Reiter v. Illinois National Casualty Co., 397 Ill. 141, 73 N.E.2d 412, 418. We dismissed the defendant Palmer from the cause, reversed the judgment of the Appellate Court as to the other defendants, and remanded the cause to the superior court with directions that the defendants be given an opportunity to present their evidence. The reversal and remandment was phrased as follows: 'We have purposely refrained from reciting the evidence or conclusions which might be drawn therefrom, because as to certain of the appellants the cause must be remanded to enable them to introduce evidence in their defense if they so elect. * * * it is our conclusion that the judgment of the Appellate Court * * * be reversed, * * * and the cause remanded to the superior court with directions to proceed in accordance with the views expressed herein.'

On receipt of our mandate, Judge Schwartz of the superior court entered an order on October 31, 1947, referring the cause to O'Toole, the master who had heard the plaintiff's evidence originally. The order recited that the reference was 'for the purpose of hearing such evidence as the defendants may care to produce and such additional evidence as the plaintiff may care to produce, and at the close of all the testimony to report his findings of fact and conclusions of law to the court.' Plaintiff, the petitioner here, objected to the re-reference to O'Toole, alleging prejudice, but his objection was overruled. Later all parties appeared before the respondent, Judge Lupe, and advised him of the petitioner's renewed objections to O'Toole and of the latter's desire to be relieved of further duties under the circumstandes. Over defendant's objections, respondent, on motion of petitioner, entered an order vacating the reference to O'Toole and referred the cause to master in chancery Thomas B. Lantry. Petitioner urged that the new order of reference should contain a proviso that Lantry should consider the evidence previously introduced before O'Toole, whereas defendants urged that the cause proceed de novo before the new master. Respondent's order, however, did not specifically mention either suggestion.

When the parties appeared before Lantry he ruled that the plaintiff-petitioner did not have to start his proof anew, but that he, Lantry, would accept and consider a transcript of the evidence previously heard by O'Toole. This ruling was certified to the respondent, who, after hearing arguments, directed that the master 'should proceed de novo and that plaintiff should first offer his proof and evidence as upon an original and first reference.' The order containing these directions is the one petitioner now seeks to expunge from the record. Petitioner contends that the order should have directed Lantry to consider the plaintiff's evidence introduced before the former master in conjunction with any offered by defendants, and that he should make his report and conclusions from all of such evidence. His argument is that he will incur additional expense if required to present his evidence again, and that he would be unable to obtain the same testimony on a new hearing because of the time that has elapsed since he first made his proof. Respondent, on the other hand, takes the position that it will be necessary for Lantry to hear all the evidence before he may properly report it make his findings and draw his conclusions therefrom.

The issue presented is not a new one, for we have had occasion in several instances to consider the authority of a second master to...