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Adcock v. Adcock





Appeal by plaintiffs from the Circuit Court of Warren county; the Hon. RILEY E. STEVENS, Judge, presiding. Heard in this court at the October term, 1949. Judgment reversed and remanded with directions. Opinion filed February 21, 1950. Released for publication March 13, 1950.


Plaintiffs, heirs-at-law of the testator, Stonewall J. Adcock, are appealing from a judgment of the circuit court of Warren county dismissing, for want of prosecution, their complaint to contest the decedent's purported will on the grounds of duress and mental incompetency.

The sole question presented herein is whether the trial court erred in dismissing the case for want of prosecution where there had been one prior continuance, and plaintiffs' counsel was actually engaged on the day the cause was set for hearing in the trial of another case which he had endeavored, without avail, to have continued.

The facts appearing from the pleadings and affidavits are that the testator died on March 18, 1947, leaving an estate worth approximately $47,600, which he disposed of by a will designating persons other than heirs-at-law as beneficiaries, and referring to them as kin, although, they were in no way related to him. The testator's only heirs-at-law apparently were first cousins, 15 of which are plaintiffs herein, and the remaining four other cousins were designated as defendants along with five persons named as beneficiaries under the will. The will was prepared by one of defendants' attorneys.

The cause was originally set for hearing on October 6, 1948, but due to the absence of a material witness it was postponed for trial to December 6, 1948. It appears, however, that plaintiffs' attorney represented certain other clients who were defendants in an eminent domain proceeding instituted in the Rock Island county court on May 17, 1948. When the court in that proceeding announced, on November 15, 1948, that the trial would be set for November 29, plaintiffs' attorney immediately moved for a continuance of the eminent domain case, and alleged in his motion that the instant will contest had been set for trial on December 6 in Warren county; that opposing counsel herein objected to any continuance; that the eminent domain case would require at least three weeks for trial; and that no other member of his firm was familiar with the issues involved in either case.

The Rock Island county court denied that motion on November 22, 1948, on the ground that a proceeding under the Eminent Domain Act is a summary one, and that, if there were any delays, damage would result to the State, since some contracts had already been allowed. That cause, thereupon, proceeded to trial.

On December 2, when it was apparent that the case would still be in trial on December 6, plaintiffs' attorney informed the circuit judge presiding in the instant case of his inability to participate in the trial of the will contest on December 6, since the eminent domain proceeding in Rock Island would still be in progress. The circuit court judge reputedly stated, both to plaintiff George T. Adcock, and to his attorney, that a continuance would depend entirely upon the consent of defendants' counsel.

On December 3, defendants' attorney was apprised of the situation, and, on December 4, a formal motion for continuance, properly verified by affidavits setting forth the circumstances and conflicting trials, was filed by plaintiffs' attorney in the instant case. The motion was denied by the court on December 6 on the ground that the case, "by agreement of solicitors was specially set for December 6, 1948," and the court granted defendants' motion to dismiss the cause for want of prosecution, from which judgment plaintiffs have appealed.

In determining whether the circuit court erred in dismissing plaintiffs' complaint for want of prosecution, this court will examine the relevant statutory provisions and the rules promulgated thereunder, and analyze the precedent established by this and other jurisdictions, inasmuch as this issue has not received abundant attention or clarification in this State.

The relevant portions of par. 183 of the Civil Practice Act (ch. 110, Ill. Rev. Stats. 1947 [Jones Ill. Stats. Ann. 104.059]) provides:

"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 circumstances, terms and conditions under which continuances may be granted, the time and manner in which application therefor shall be made and the effect thereof, shall be according to rules."

The applicable rules prescribed by the Supreme Court do not set forth any arbitrary standards for the granting or denial of a motion for continuance. Par. 259.8, subpar. (5) [Jones Ill. Stats. Ann. 105.08, subpar. (5)] provides:

"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.

In par. 259.14 [Jones Ill. Stats. Ann. 105.14] which specifically pertains to motions for continuances, and the ...

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