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Soter v. Christoforacos

OCTOBER 28, 1964.

HELEN SOTER, PLAINTIFF-APPELLANT,

v.

BASIL CHRISTOFORACOS, ALIAS HRISTOS COKINIS, AND PHILLIP S. MAKIN, ALIAS PHILLIP S. MARINACOS, AND JOHN C. GEKAS, DEFENDANTS-APPELLEES.



Appeal from the Superior Court of Cook County; the Hon. JOHN E. PAVLIK, Judge, presiding. Affirmed.

MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

This is an appeal from a summary judgment entered in the then Superior Court of Cook County in a suit brought by Helen Soter against Basil Christoforacos, alias Hristos Cokinis; Phillip S. Makin, alias Phillip S. Marinacos; and John C. Gekas, hereafter referred to as the defendants.

The plaintiff originally filed a complaint with a jury demand. The complaint was stricken and leave given to the plaintiff to amend. A second amended complaint in two counts was filed September 1, 1961. The defendants moved to dismiss the second amended complaint on the ground that the complaint did not state a cause of action, and that the pleadings referred to in the complaint were privileged.

The plaintiff filed an answer to the motion to dismiss, and the defendants thereupon filed an amended motion on July 18, 1962. In that motion they asked that the court strike the plaintiff's complaint and dismiss her suit, or enter a judgment against her on the pleadings, and in the alternative, asked that the court enter a summary judgment against the plaintiff. The plaintiff filed objections to the amended motion on August 6, 1962, and prayed that it be stricken and denied; that an order of default be entered against the defendant and that the matter be set down for a proveup before a jury. On October 9, 1962, the court entered the following order:

"This cause coming on to be heard upon Motion of the Defendants to dismiss Plaintiff's action, because the Complaint does not state a cause of action, or in the alternative for a judgment on the pleadings, or in the alternative for a summary judgment in favor of the Defendants and against the Plaintiff; and the Court having considered the Plaintiff's Complaint and the Motions of the Defendants, and having considered their oral statements of fact and statements of fact in their briefs, and having considered the briefs of the parties, and after arguments of counsel, and the Court being fully advised in the premises;

"IT IS HEREBY ORDERED that the Motions of the Defendants for summary judgment be and the same is hereby sustained, and that a summary judgment be and it is hereby entered in behalf of the Defendants and against the Plaintiff; and it is hereby ordered, adjudged and decreed that the Plaintiff's suit be and it is hereby dismissed at Plaintiff's cost.

"IT IS FURTHER ORDERED that the oral motion of the Plaintiff for leave to amend his Complaint be and the same is hereby denied.

"IT IS FURTHER ORDERED that the plaintiff go hence without day and take nothing by this suit.

"To the entry of the foregoing order the plaintiff objects."

On December 11, 1962, the court entered an order denying plaintiff's motion for rehearing and to reconsider and vacate the judgment order of October 9, 1962, and denying the alternative motion for leave to file an amended complaint.

On February 9, 1963, the plaintiff filed a notice of appeal to the Supreme Court of Illinois. In her brief the plaintiff alleged that the appeal must be taken directly to the Supreme Court because constitutional questions were involved. The Illinois Supreme Court transferred the appeal to this court.

The first question raised by the plaintiff is that the trial court had no jurisdiction to enter the summary judgment against the plaintiff on October 9, since the plaintiff had on October 3 filed a petition for a change of venue from the trial judge and various other judges on the ground that those judges were prejudiced against the plaintiff, and "that said prejudice first came to the knowledge of the petitioner within less than ten days before making, filing and presenting this Petition."

In the plaintiff's brief which was filed in the Supreme Court and which is before us on the transfer to this court, the plaintiff has set out Points and Authorities, — among others, VI, VI-A, VI-B, VI-C, VI-D and VI-E, all dealing with the alleged error of the trial court in denying the plaintiff's petition for a change of venue. In her argument the plaintiff argues seriatim all the points raised until she comes to the question of the change of venue and then, instead of arguing, she repeats in substance the points verbatim and cites authorities previously set out, eliminating any argument whatsoever.

Present Supreme Court rule 39 deals with briefs and provides that the appellant's brief shall contain the following divisions in the order named: I. Nature of the Case; II. Points and Authorities; III. Statement of Facts; IV. Argument. The rule states that the points and authorities shall consist of the propositions relied upon in support of the appeal with citation of authorities. Subsection IV states:

"The Argument shall be limited to the points made and cases cited in the Points and Authorities, and in the sequence in which the points are made. A point made but not argued may be considered waived. Citation of authorities in the Argument shall ...


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