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Hudson v. Leverenz

OPINION FILED NOVEMBER 26, 1956

MILDRED HUDSON ET AL., APPELLANTS,

v.

DON LEVERENZ, DOING BUSINESS AS DON'S TAVERN, ET AL., APPELLEES.



APPEAL from the Appellate Court for the Third District; — heard in that court on appeal from the Circuit Court of Vermilion County; the Hon. JOHN F. SPIVEY, Judge, presiding.

MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 23, 1957.

This case is here on a certificate of importance from the Appellate Court, Third District, which in an appeal from the circuit court of Vermilion County set aside certain judgments and ordered a new trial. Reversal was based on a finding that the trial court improperly refused the defendants a jury trial. 9 Ill. App.2d 96.

On January 29, 1954, Clinton Hudson was killed when the auto in which he was riding collided with an auto driven by Jackie Nebergall. Hudson's widow, Mildred, and his three minor children, Sharon, David and Michael, sued the defendants, tavern operators, under the Dram Shop Act, claiming Nebergall was intoxicated as a result of drinks purchased from the defendants.

Trial was before the court without a jury, and the following judgments were entered: for Mildred, $15,000; for Sharon, $6750; for David, $8250; and for Michael, $8750.

On appeal to the Appellate Court, the defendants assigned several errors, but the court ruled against them on all issues except the one pertaining to an alleged wrongful deprivation of a jury trial.

In this court the defendants again urge, in addition to the jury trial question, that the evidence was not sufficient to support the judgments and that the trial court erred in refusing to admit evidence of social security benefits payable to the plaintiffs. We adopt the opinion of the Appellate Court on these two matters and confine our discussion to whether the trial court abused its discretion in refusing to grant defendants' request for a jury trial. Only facts relevant to this issue are stated.

The plaintiffs filed their original complaint on March 3, 1954, but in order to bring in additional parties defendant, they filed three amended complaints. At no time did they ask for a jury trial.

The several defendants filed their answers from time to time, the final pleading being dated September 2, 1954. Likewise, they did not request a jury.

On October 4, 1954, there was a docket setting at which both sides were represented by counsel. The cause was placed on the non-jury calendar as the first case on December 13, 1954.

Nearly two months later, on December 1, 1954, the defendants filed a jury demand, without notice or leave of court. Plaintiffs' attorney learned of this, and on December 3, 1954, moved that it be stricken. A hearing was set for December 6, 1954, and at that time counsel for all but one of the defendants asked leave to file a jury demand, alleging that their failure to request a jury at the time answers were filed was the result of "misapprehension of the facts, mistake and inadvertence."

In a supporting affidavit, the attorneys for two of the defendants stated they came into the case on September 29, 1954, replacing other counsel, and erroneously assumed the latter had demanded a jury. Another defense counsel, representing the owners of another of the taverns, stated by affidavit that he "was under the impression that the plaintiffs had demanded a jury trial at the time the original complaint was filed, since this is the usual practice in dram shop suits."

Plaintiffs' attorney filed a counteraffidavit in which he stated that at the October 4 docket setting one of the defense counsel said he was appearing for all the defendants for the purpose of the trial setting; that the clerk sent all interested attorneys a list of the cases set, the instant case being noted for non-jury trial on December 13, 1954; that subsequent to the docket setting he discussed the trial date with opposing counsel at a deposition hearing; and that "it would be disadvantageous to plaintiffs and work a hardship both financially and otherwise with respect to their causes of action if defendants be granted leave less than two weeks before trial to have said cause alloted on a jury calendar" since "on December 6, 1954, the presiding judge stated that in the event this cause was alloted for jury trial, it could not be heard until February, 1955," and had it been known at the October 4 docket setting that the defendants wanted a jury trial, the cause could have been set down for trial in November, 1954.

As noted, the trial judge refused to allow a jury trial, and the cause proceeded to trial before the court, as scheduled, on December 13, 1954. The issue on this appeal is whether the trial court abused its ...


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