Stephens v. Kasten

Decision Date17 May 1943
Docket NumberNo. 27026.,27026.
Citation383 Ill. 127,48 N.E.2d 508
PartiesSTEPHENS et al. v. KASTEN et al.
CourtIllinois Supreme Court


Action by Luther Stephens and another against Ralph Kasten and another to recover for damages growing out of an automobile collision. From a judgment in favor of the plaintiffs, the defendants appeal.

Judgment reversed, and cause remanded for a new trial.Appeal from Circuit Court, Madison County; D. H. Mudge, judge.

Simpson, Reed & Burroughs, of Edwardsville, for appellants.

G. Edmund Cook, of Madison, for appellees.

FULTON, Justice.

This is a suit for damages growing out of a collision of two automobiles on the public highway. A trial was had before the circuit court of Madison county without a jury, and substantial damages awarded to the plaintiffs-appellees and against both the appellants. An appeal from that judgment has been brought to this court. The appeal involves only questions of law. It is the contention of the appellants that section 64 of the Civil Practice Act (Ill.Rev.Stat. 1941, chap. 110, par. 188,) is so arbitrary and unreasonable that it violates section 5 of article II of the Illinois constitution of 1870, Smith-Hurd Stats., providing for the right of trial by jury, and, in the alternative, that under the circumstances of this case the action of the court, in denying the appellants' request or demand for trial by jury, was an abuse of its judicial discretion and constitutes reversible error.

The history of the case is briefly as follows: On October 10, 1940, the appellees filed their complaint asking for damages and charging the appellants with negligence in the operation of an automobile. On November 16, 1940, the appellants, through an attorney of Springfield, filed a motion to strike counts one and three of the complaint claiming that ‘recklessness' as charged with allegations of negligence was in effect an allegation of wanton misconduct or a different degree of conduct from that of negligence. On January 13, 1941, the appellees were granted leave to amend the complaint by interlineation, striking out the word ‘recklessly’ wherever the same appears. On January 27, 1941, through a Springfield attorney, the appellants filed a motion to dismiss. On February 5, 1941, the court entered an order reciting the withdrawal of the appellants' motion to dismiss and granting leave to the appellants to answer by February 10, 1941. On February 10, 1941, the appellants, for the first time, filed a written demand for jury, through new attorneys in Edwardsville, on the same day filing an answer denying the allegations of due care on the part of the appellees and denying each act of negligence charged against them. On May 19, 1941, the appellees filed a motion to strike the appellants' demand for jury, apparently without notice thereof, which motion was sustained by the trial court on June 9, 1941, the demand for jury thereupon being stricken. On June 19, 1941, the appellants, through the Edwardsville attorneys, filed a motion asking that the court enter an order extending the time within which the appellants be allowed to file a demand for jury, or, in the alternative, to set aside the court's order entered June 9, 1941, setting forth as reasons therefor: (1) that the filing of the demand for jury concurrently with the answer has not prejudiced any substantial right of appellees; (2) that failure to permit a trial by jury when same is requested at the time issues are joined or before the cause is set for trial constitutes an arbitrary, unreasonable and unconstitutional limitation of the right of trial by jury, and (3) that a denial of a right to trial by jury before the cause is set for hearing contravenes section 5 of article II of the Illinois constitution of 1870.

In conjunction with this motion there was filed by James L. Reed, one of the attorneys representing the appellants, an affidavit stating in substance that he is the attorney for the appellants, and as such is authorized to make the affidavit in their behalf; that upon receipt of the summons in the instant suit, same was forwarded by the appellants to their insurance carrier at Springfield, pursuant to the provisions of the insurance contract; that the company denied liability by reason of a breach of the contract, but agreed to defend the appellants under a nonwaiver agreement; that pursuant thereto the Springfield counsel filed a motion to strike the complaint but either through misapprehension or mistake failed to demand a trial by jury at said time; that the affiant's law firm was employed to represent the appellants after the filing of the motion to strike, at which time an answer and demand for trial by jury was filed; that neither the affiant nor his law firm received any notice of the motion to strike the demand for jury trial, other than a call from the clerk of the circuit court on the morning of June 9, 1941, at which time the attorneys for the appellees were presenting their motion to the court for decision; that the affiant's law partner immediately proceeded to the court room, but that the motion to strike the jury demand had already been granted without argument and without the affiant or his law firm being present or having the opportunity to be heard; that the affiant has been informed by the appellants and by the original Springfield counsel that neither of the appellants nor the Springfield counsel ever intended to waive the right to a trial by jury and that the appellants had never authorized such a waiver.

On October 3, 1941, the motion of June 19, 1941, to extend time for filing demand for jury or, in the alternative, to set aside the order of June 9, 1941, was denied. The case was not called for hearing until January 12, 1942, and on January 29, 1942, the court found the issues against the appellants and allowed the appellee Luther Stephens the sum of $6,000 in damages and the appellee Clarence Stephens the sum of $7,000 in damages against both of the appellants. The appellants thereupon perfected their appeal to this court.

In condensed form this appeal presents two questions of law: 1. Does section 64 of the Civil Practice Act contravene section 5 of article II of the constitution of 1870? 2. Did the trial court err in refusing the appellants' motion to extend time for filing their demand for jury trial and was such refusal an abuse of the court's discretion in that regard?

Section 5 of article II of the Illinois constitution of 1870 provides: ‘The right of trial by jury as heretofore enjoyed, shall remain inviolate.’ Section 64 of the Civil Practice Act provides as follows: ‘A plaintiff desirous of a trial by jury shall make his demand for a jury in writing, and file such demand with the clerk at the time suit is commenced, and a defendant desirous of a trial by jury shall make such demand and file the same at the time of filing his appearance; otherwise such party shall be deemed to have waived a jury * * *.’ Section 59 of the Civil Practice Act provides in part as follows: ‘Additional time may be granted on good cause shown, in the discretion of the court and on such terms as may be just, for the doing of any act or the taking of any step or proceeding prior to judgment in any civil action.’ The above-quoted portion of section 59 is supplemented by paragraph 5 of Supreme Court Rule 8, Smith-Hurd Stats. c. 110, § 259.8, which reads: ‘The judge, for good cause shown on special motion after notice to the opposite party, may extend the time for putting in any pleading or the doing of any act which is required by the rules to be done, within a limited time, either before or after the expiration of the time.’ The...

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46 cases
  • Ferrill, Matter of
    • United States
    • Court of Appeals of New Mexico
    • 23 June 1981 enforce the time limitation is not reversible error...." Daly v. Scala, 39 A.2d 478, 479 (D.C.Mun.App.1944); Stephens v. Kasten, 383 Ill. 127, 48 N.E.2d 508 (1943); Tilton v. Sharp, 52 S.W.2d 289 (Tex.Civ.App.1932); City of Jackson v. Clark, 152 Miss. 731, 118 So. 350 Under Rule 39(a), i......
  • Bowman v. American River Transp. Co.
    • United States
    • Illinois Supreme Court
    • 20 October 2005
    ...of the Code necessarily implies Jones Act defendants, like all tort litigants, have a right to a jury trial. In Stephens v. Kasten, 383 Ill. 127, 48 N.E.2d 508 (1943), this court expressly recognized the right of defendants to a jury trial in a tort action seeking money damages. The court f......
  • Lucky Ned Pepper's Ltd. v. Columbia Park and Recreation Ass'n
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    • Court of Special Appeals of Maryland
    • 1 September 1984 prima facie evidence of violation of liquor control laws is not a violation of one's right to a jury trial); Stephens v. Kaster, 383 Ill. 127, 48 N.E.2d 508 (1943) (statute requiring written demand for a jury trial not violation of one's right to a jury); State v. Marion Circuit Court, M......
  • Greene v. City of Chicago
    • United States
    • Illinois Supreme Court
    • 6 October 1978
    ...failure to timely file the jury demand. The most frequently cited decisions of this court involving this question are Stephens v. Kasten (1943), 383 Ill. 127, 48 N.E.2d 508, and Hudson v. Leverenz (1956), 10 Ill.2d 87, 139 N.E.2d 255. In Stephens, it was held that the circuit court had abus......
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