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Roselawn Memorial Park v. Dewall

AUGUST 21, 1956.

ROSELAWN MEMORIAL PARK, PLAINTIFF-APPELLANT,

v.

KENNETH L. DEWALL, KERMIT B. DEWALL, AND LUCILLE DEWALL, INDIVIDUALLY AND AS PARTNERS DOING BUSINESS AS T.C. DEWALL AND SONS, DEFENDANTS-APPELLEES. KENNETH L. DEWALL, KERMIT B. DEWALL, AND LUCILLE DEWALL, INDIVIDUALLY AND AS PARTNERS DOING BUSINESS AS T.C. DEWALL AND SONS, COUNTERPLAINTIFFS-APPELLEES,

v.

ROSELAWN MEMORIAL PARK, COUNTERDEFENDANT-APPELLANT.



Appeal from the Circuit Court of Sangamon county; the Hon. DEWITT S. CROW, Judge, presiding. Affirmed.

PER CURIAM.

Rehearing denied August 21, 1956.

The plaintiff, Roselawn Memorial Park, brings this cause to this court to review a decree of the Circuit Court of Sangamon county wherein on a counterclaim the defendants obtained a permanent injunction finding that a certain rule of the cemetery was unreasonable, null and void, and enjoined the plaintiff-appellant from denying access to the cemetery by the defendants for the purpose of delivering, setting, sealing and lowering burial vaults.

The plaintiff is a private corporation operating a cemetery near Springfield, Illinois and licensed under the "Cemetery Care Act," Ill. Rev. Stat. 1955, Chap. 21, par. 64.1, et seq. On May 15, 1952 it filed its verified complaint for injunctive relief in the Circuit Court of Sangamon county against the defendants, Kenneth L. DeWall, Kermit B. DeWall and Lucille DeWall, individually and as partners doing business as T.C. DeWall and Sons, engaged in the business of selling Wilbert Burial Vaults in the Springfield area. It alleged that one of its rules regarding interments provides: "All graves shall be dug by workmen employed in the Park and no work of any kind shall be done in the Park except by Park employees." The defendants had been reminded of this rule before May 1, 1952 and notified that after that date all burial vaults in the cemetery would have to be installed by cemetery workmen; that defendants, nevertheless, installed a vault on May 3, 1952 and indicated that they intended to install another on the date that the complaint was filed. The court issued a temporary injunction without notice and approved plaintiff's bond on May 15th. On June 6th defendants moved to dissolve the temporary injunction and filed their answer in which they set up that they were lot owners in the cemetery operated by plaintiff, as well as in the business of selling burial vaults. In addition defendants filed a counterclaim praying for a declaratory judgment as to their right to install vaults in the cemetery and to restrain the cemetery from interfering with the installation of vaults by the defendants. On June 16, 1952 the temporary injunction granted plaintiff was dissolved because no notice had been given to the defendants. On July 19th, July 21st and July 26th temporary restraining orders were issued by the court at counterplaintiffs' request permitting the installation of vaults purchased for specific interments by the counterplaintiffs. A hearing was had August 6, 1952 on the counterplaintiffs' motion for blanket temporary injunction filed on July 19, 1952 and an order was entered granting the motion and such injunction issued on September 7, 1952. On the latter date, by agreement of counsel, the cause was tentatively set for hearing before the court on September 22, 1952.

All of these proceedings were had before the Honorable DeWitt S. Crow, except the order of May 15, 1952 providing for the issuance of a temporary injunction as prayed for in the original complaint. On September 18, 1952 a petition for change of venue by the plaintiff was filed on the ground of the prejudice of the Honorable DeWitt S. Crow. The petition and affidavit in support thereof alleged that the prejudice first came to the knowledge of the petitioner on or about September 2, 1952. Notice and proof of service of the petition for change of venue on the defendants and counterplaintiffs was dated September 10, 1952 and the notice stated that the petition would be presented on September 20, 1952. The petition for change of venue from the Honorable DeWitt S. Crow was denied and the appellant assigns error on this ruling.

It is to us apparent that after numerous preliminary hearings on the issues presented by the complaint and answer, counterclaim and affidavits, as to the right of the plaintiff and of the defendants and counterplaintiffs to injunctive relief, plaintiff applied for a change of venue from the presiding judge immediately before the case was set for hearing.

In Commissioners of Drain. Dist. No. 1 v. Goembel, 383 Ill. 323, 50 N.E.2d 444, a drainage assessment case, objections to the petition were overruled in December, and in January the cause was set for final hearing on February 10th. On February 2nd defendants filed a petition for change of venue alleging prejudice of the presiding judge. The application was denied, and in affirming this order, the Supreme Court says at page 328: "A petition for a change of venue must be made at the earliest practicable moment. (Ossey v. Retail Clerks' Union, 326 Ill. 405; McClelland v. McClelland, 176 Ill. 83; Haley v. City of Alton, 152 Ill. 113.) An application made after the hearing started comes too late. (Ossey v. Retail Clerks' Union, 326 Ill. 405; Richards v. Greene, 78 Ill. 525; Hudson v. Hanson, 75 Ill. 198.) The reason that supports the rule is obvious. It would be highly improper to permit an attorney representing parties to a suit to try out the attitude of the trial judge on a hearing as to part of the questions presented and, if his judgment on such questions was not in harmony with counsel's view, to then permit counsel to assert that the court was prejudiced and that a change of venue must be allowed."

In Russell v. Russell, 333 Ill. App. 68, 77 N.E.2d 328, the court says at page 87: "To repeat what was stated in Comrs. of Drainage Dist. v. Goembel, supra, (p. 328): `It would be highly improper to permit an attorney representing parties to a suit to try out the attitude of the trial judge on a hearing as to part of the questions presented and, if his judgment on such questions was not in harmony with counsel's view, to then permit counsel to assert that the court was prejudiced and that a change of venue must be allowed.' Under the circumstances presented by the instant record it is our judgment that the hearing upon the motion for a restraining order and the oral motion of defendant for leave to withdraw his counterclaim was a material and important part of the case, and since that part had received the consideration of the chancellor and he had made a ruling thereon it was then too late to file a petition for a change of venue (see Comrs. of Drainage Dist. v. Goembel, supra, p. 329), which was not filed until twenty-seven days after the entry of the restraining order, and fourteen days after counsel for plantiff and defendant had appeared before Judge Schwaba in open court and agreed that an order be entered setting the cause for trial upon the merits on June 26, 1946. We are aware that in the instant case the merits of the petition and the motives of defendant in filing it may not be inquired into by the chancellor, and if in our consideration of the instant question we have referred to and commented upon parts of the record that seem to have a bearing upon his purpose and good faith in filing the petition it must be understood that we have considered these parts solely as they bear upon the question as to whether or not the petition was filed in apt time. We hold that the chancellor, under the record, was warranted in denying the petition for a change of venue."

In this case there were numerous hearings and all involved substantially the same issue to be considered on the final hearing, that is to say, the right of the parties to injunctive relief. The plaintiff here tried out the attitude of the presiding judge and we believe it was too late for the plaintiff to claim that it was prejudiced. The trial court committed no error in denying the petition for change of venue.

On October 27, 1952 the cause was referred to a master in chancery who reported to the court and recommended that plaintiff's complaint be dismissed and that a permanent injunction be issued in accordance with the prayer of defendant's counterclaim. The master in chancery made the following, among other, findings:

"6. The plaintiff has a device known as the `Ledyard Lowering Device,' by use of which it is not possible to have a complete view as to whether or not the vault is sealed because it is placed below the surface of the ground. . . .

"8. That by use of the Wilbertway Device, the lower portion of the vault is held suspended and the vault is placed together above the ground so that a visual inspection can be made to determine whether it is sealed.

"10. That the Ledyard Lowering Device is not the most suitable to lower and seal a Wilbert Burial Vault. . . .

"18. That the rules and regulations of Roselawn Memorial Park requiring all work to be done within the cemetery by cemetery employees is unreasonable, null and void ...


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