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Roszell v. Gniadek

OPINION FILED NOVEMBER 14, 1952

LYLE W. ROSZELL, PLAINTIFF-APPELLANT,

v.

HERMAN GNIADEK, DEFENDANT-APPELLEE.



Appeal by plaintiff from the Circuit Court of Tazewell county; the Hon. JOHN T. CULBERTSON, JR., Judge, presiding. Heard in this court at the October term, 1952. Judgment affirmed. Opinion filed November 14, 1952. Released for publication December 10, 1952.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT.

A negligence action was filed by the plaintiff on December 22, 1949 for injury to his person and damage to his car against the defendant, in the circuit court of Tazewell county. On the defendant's own motion, but with the consent of the plaintiff, an order was entered on January 16, 1950 extending the time for the filing of the defendant's pleading to January 26, 1950. On January 26, 1950 a motion to strike a portion of the complaint was filed by the defendant. No demand for jury trial was filed in the original complaint, and the defendant failed to demand a jury until April 19, 1950, when he filed a motion for leave to file a jury demand. This motion was supported by an affidavit of the defendant's attorney to the effect that failure to demand a jury trial was the result of his own inadvertence and mistake.

At the September term (November 9, 1950) leave was granted defendant to file jury demand within ten days, which demand was so filed. Later the plaintiff's motion to strike the jury demand was denied.

The jury trial which followed resulted in a verdict for the defendant as to the complaint of the plaintiff, and for the plaintiff on the counterclaim.

The sole issue presented on this appeal is to determine if the trial judge had the authority to extend the time for the defendant to file the jury demand.

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."

This portion of section 59 is supplemented by paragraph 5 of Supreme Court Rule 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 appellant takes the position, in the light of the language of section 64 above quoted, that it was error for the trial judge to have permitted a jury demand to be filed by the defendant after both a motion to extend the time for pleading and a motion to strike the complaint had been filed by the defendant.

Appellant claims that each document was equivalent to a general appearance, and having filed a general appearance the defendant is, in the words of the section, "deemed to have waived a jury."

[1-4] While the right to a trial by jury is a constitutional guarantee section 64 imposes regulations as to what must be done by a litigant to display his desire for a jury trial so as to insure the orderly presentation of the business of the court. This section has been held to be reasonable in its requirements, and constitutional. Stephens v. Kasten, 383 Ill. 127. The provision is not intended to impose a burden on a person or to create a condition precedent of the enjoyment of a constitutional privilege, but merely establishes an orderly method for a party to a lawsuit to inform the court of his desire to have his case tried by a jury, as is his right. In the light of the accompanying sections of the Civil Practice Act, the Supreme Court ...


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