Appeal from the Superior Court of Cook county, the Hon. JOHN
J. LUPE, Judge, presiding. Reversed and remanded with directions.
PRESIDING JUSTICE FEINBERG DELIVERED THE OPINION OF THE COURT.
Plaintiff appeals from an order entered December 29, 1955, overruling plaintiff's exceptions to the master's report and dismissing the cause for want of prosecution at plaintiff's costs, and from an order entered February 20, 1956, denying the motion to vacate the order of December 29, 1955.
The original complaint in this cause was filed April 24, 1936. It was here on a previous appeal (Reiter v. Illinois National Casualty Co., 328 Ill. App. 234 (First Division), in which this court reversed a decree dismissing the complaint for want of equity and remanded the cause to the Superior Court with directions to enter a decree in favor of plaintiff.
We refer to that opinion for a statement of the facts. In view of the conclusion reached upon this appeal, we refrain from making any comment upon the evidence recited in the Appellate Court opinion.
The decree which was reversed was entered upon a report by Master O'Toole, who reported the evidence taken before him and his conclusions and recommendations. It appeared from his report that at the conclusion of plaintiff's evidence, the defendants each moved for a finding by the master in their favor. The defendants introduced no evidence. The master sustained that motion and recommended the dismissal of the complaint based only on the evidence for plaintiff and the pleadings in the cause. This court, in reversing that decree, held that the motion for a finding made before the master at the conclusion of plaintiff's evidence was tantamount to submission for a final determination of the cause upon the evidence for plaintiff, and further held that plaintiff was entitled to an accounting, and directed a decree be entered for plaintiff.
The Supreme Court (Reiter v. Illinois National Casualty Co., 397 Ill. 141) reversed the judgment on the ground that the motion for a finding was not tantamount to a submission of the cause upon the plaintiff's evidence, and remanded the cause to the trial court to allow the defendants to proceed with the taking of testimony in their defense, if so desired by them. Upon the filing of the mandate of the Supreme Court, the Superior Court on October 31, 1947, re-referred the cause to Master O'Toole for the taking of further evidence.
To explain the reasons for this protracted litigation (presently over 20 years), it is necessary to briefly outline in chronological order the proceedings following the decision of the Supreme Court.
On October 18, 1948, plaintiff's petition to cancel the reference to Master O'Toole, in which serious charges of prejudice on the part of the master were asserted, was denied and defendants ordered to close proofs before said master within six months from October 14, 1948.
On March 10, 1949, plaintiff filed a motion with the master that the cause be heard by some master other than Master O'Toole. Master O'Toole justifiably refused to hear the cause further, and on March 23, 1949, the reference to Master O'Toole was vacated and the cause referred to Master Lantry. In the hearing before Master Lantry plaintiff refused to proceed with production of his evidence but insisted that the evidence taken before Master O'Toole should be received by the new master. The master certified the question of procedure to the chancellor, who entered an order May 11, 1949, requiring plaintiff to proceed de novo before Master Lantry, and that the master do not consider the evidence taken before Master O'Toole.
Plaintiff then filed a petition in the Supreme Court for original mandamus against the chancellor, to expunge from the record the order of May 11, 1949. The proceedings before Master Lantry were suspended pending the petition for mandamus in the Supreme Court. The Supreme Court, in People ex rel. Reiter v. John J. Lupe, Judge, 405 Ill. 66, denied the writ, in which the court held that Master Lantry could not consider the evidence taken before Master O'Toole, since he had no opportunity to see or hear the witnesses and judge their credibility, and therefore could not fully perform his duties under the law. The court stated:
"Thus, petitioner's predicament of having to proceed de novo before Lantry is largely one of his own creation, and not the result of any arbitrary or unreasonable action on the part of the trial court."
March 14, 1950, Master Lantry having died, the motion to vacate the reference to Master Lantry was allowed. Reversing his previous position, plaintiff then moved to re-refer the cause to Master O'Toole, which was denied on April 21, 1953, and the cause was then referred to Master Wescott, who set the cause for hearing on May 14, 1953. Several continuances of the hearing before Master Wescott followed.
On July 17, 1953, plaintiff applied to the United States District Court for the Northern District of Illinois for a restraining order against defendants and Master Wescott, from proceeding with the hearing, and for a declaratory judgment in that court. On October 20, 1953, the United States District Court refused to allow the filing of the complaint for a declaratory judgment and declined to accept jurisdiction. An appeal was taken from that order in March, 1954, to the Circuit Court of Appeals for the Seventh Circuit, which court on June 10, 1954, affirmed the District Court.
On April 12, 1955, plaintiff moved in the instant cause for leave to file a supplemental complaint for a declaratory judgment. Defendants countered with a motion to dismiss the cause for want of prosecution. On June 24, 1955, the court refused leave to file the supplemental complaint and denied the motion to ...