Talbot v. Stanton

• Decision Date: 07 January 1946
• Docket Number: Gen. No. 43521.
• Citation: 64 N.E.2d 388,327 Ill.App. 491
• Parties: TALBOT v. STANTON.
• Court: United States Appellate Court of Illinois

327 Ill.App. 491

64 N.E.2d 388

TALBOT

v.STANTON.

Gen. No. 43521.

Appellate Court of Illinois, First District, First Division.

Jan. 7, 1946.

Appeal from Circuit Court, Cook County; Harry M. Fisher, Judge.

Action by Alex F. Talbot against Lyman A. Stanton to recover on a judgment which had been assigned to plaintiff. Judgment for plaintiff, and defendant appeals.

Reversed and remanded with directions.Winston, Strawn & Shaw, of Chicago, for appellant.

England & O'Toole, of Chicago, for appellee.

NIEMEYER, Justice.

Defendant appeals from a judgment entered against him on trial before the court without a jury after denial of defendant's motion for a change of venue on the ground of prejudice of the presiding judge.

Action against the defendant was commenced March 30, 1944, by plaintiff as assignee of a judgment entered December 19, 1931, in favor of the Citizens National Bank of Chicago Heights against defendant for the amount due on the judgment; on April 11, 1945, an amended complaint was filed, to which defendant filed a motion to dismiss alleging another action pending involving the same claim; on September 24, 1945, after the present appeal was perfected, an order was entered nunc pro tunc as of May 17, 1945, denying plaintiff's motion for a judgment for failure of the defendant to plead or answer the complaint, and overruling defendant's motion to dismiss the suit; on the same date a second order was entered nunc pro tunc as of June 5, 1945, continuing plaintiff's motion for a judgment for failure of the defendant to answer the complaint to June 8, 1945, without further notice. June 6, 1945, defendant served notice on plaintiff's attorneys that on June 8, 1945, defendant would present his petition for change of venue; on the latter date the trial judge, whose alleged prejudice is the ground for the change of venue, entered an order denying the change of venue, calling the cause for trial as a non-jury matter and, upon hearing all of the evidence adduced, finding the issues in favor of the plaintiff, assessing the plaintiff's damages at $19,502.95 and entering judgment for that amount. The only point urged for reversal of the judgment is the refusal of the trial judge to grant the change of venue.

The defendant's petition was in proper form and duly verified as required by the statute. No discretion was given to the court, and defendant's right to a change of venue was absolute, People v. Scott, 326 Ill. 327, 157 N.E. 247, unless, as contended by plaintiff, the motion came too late or defendant waived his right by being present and participating in the trial which followed refusal of his motion. Plaintiff relies upon the case of Commissioners of Drainage Dist. V. Goembel, 383 Ill. 323, 328, 329, 50 N.E.2d 444, 447, where the court said: ‘If the hearing on legal objections to the petition is to be deemed as a part of the hearing of legal objections to the assessment roll and the trial on benefits, then it must be said that the application for change of venue came after the hearing started and was too late. The similarity of questions raised as to each set of legal objections shows that appellants treated the two hearings as one. When the court ruled on the objections to the petition, appellants knew what the judge's attitude would be when the same objections were filed to the assessment roll. Under the circumstances each hearing must be taken to be a part of the whole proceeding. Appellants undertake to base their belief of the judge's prejudice upon the statements Judge Ludens made a few days previous to the filing of the petition for change of venue. The time of becoming acquainted with that fact merely overcame the bar raised by section 6 of the Venue Act and did not meet the requirement that the application must be made before the hearing starts.’ The present case is easily distinguished. The record does not show that plaintiff's motion for judgment for failure of defendant to answer the complaint was presented to and was under consideration by the court when the motion for change of venue was presented; there is no suggestion that the court had given any intimation of his views respecting that motion; no order was entered on the motion; no answer of defendant was on file; defendant was not defaulted and the case was not at issue at the time of the trial, which the order of the court shows was had; it was not being called for trial. The motion was made in apt time. Yedor v. Chicago City Bank & Trust Co., 323 Ill.App. 42, 58, 54 N.E.2d 728, and cases cited.

Upon denial of the petition for change of venue the case was heard by the motion judge from whom the change was sought, the record reciting: ‘Thereupon this cause being called for trial as a nonjury matter come the parties to this suit by their respective attorneys respectively.’ Plaintiff contends that this shows participation in the trial by defendant's attorneys, constituting a waiver of the right to change of venue. To so hold would make the right to a change of venue of title practical use. A litigant having a meritorious cause of action or defense who was wrongfully denied a change of venue would suffer a judgment to be entered against him as in case of default if he elected to stand on his petition. If he waived his right under his petition for change of venue he would submit his cause or defense to a prejudiced judge. In either case the purpose of the statute would be defeated. As said in People v. Scott case 326 Ill. 327 at page 341,157 N.E. 247, 254: ‘The spirit of our laws demands that every case, whether a statutory proceeding or otherwise, shall be fairly and impartially tried, and no judge should think of presiding in a case in which his good faith in so doing is open to such serious question as that presented by this record. These provisions of the statute should receive a broad and liberal, rather than a technical and strict, construction, and should be construed so as not to defeat the right attempted to be attained therein.’ In passing on a litigant's right to participate in a trial following denial of his motion for a change of venue, the Supreme court in Gillette v. Aurora Rys. Co., 228 Ill. 261, at page 268, 81 N.E. 1005, at page 1006, said: ‘It is also urged that this error in denying a change of venue was waived by the defendants going to trial without protesting, and counsel cite the case of DuQuoin Water-Works Co. v. Parks, 207 Ill. 46, 69 N.E. 587, as supporting that claim. That case and other like cases have no relevancy to this question. There a change of venue had been granted, and the venue changed to another judge. Two years afterward the judge who had been disqualified heard the cause, and the defendants failed to call his attention to the disqualification. In such cases it has been considered that a judge might overlook or not recall the fact, and it is the duty of a party affected by the...