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Davies v. Infragnia

DECEMBER 9, 1964.

JOSEPHINE DAVIES, PLAINTIFF-APPELLANT,

v.

JOE INFRAGNIA AND JAMES AMOROSO, D/B/A MIAMI LOUNGE AND HERBERT M. SCHIELER, D/B/A FUN LOUNGE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. HAROLD G. WARD, Judge, presiding. Affirmed.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

This is an appeal from orders dismissing the cause for want of prosecution and denying plaintiff's motions to vacate that order and reinstating the cause.

On June 10, 1963, the case was reached for trial. There is no record of what transpired on that date *fn1 but the case was placed on the "Hold Call." Procedures outlined in "Assignment Policy Recommendations" *fn2 were that a case placed on this call could be restored on notice by either attorney. If not restored within 90 days, the case is "automatically returned to the Trial Call above the Black Line, and no continuance because of engagement of counsel shall be allowed either side, except for good cause shown."

On November 12, 1963, after the expiration of more than 90 days, the case again reached the trial call and plaintiff filed an affidavit requesting that additional time be granted to locate Witness Brown and that the case be placed on the dormant calendar. The affidavit stated: *fn3

The above captioned case is an action under the Dram Shop Act. The allegedly intoxicated person, Richard Eugene Brown, whose testimony is indispensable to prove the issues of sale and consumption by the defendants, is, at the present time, a fugitive from justice and is being sought under a warrant charging him with "assault with intention to commit murder" by the Police Department of Cicero, Illinois.

Plaintiff argues that this affidavit complies with Rule 14 of the Supreme Court dealing with continuances and that the court's order of dismissal results in injustice. Defendant did not file any answer or motion to strike the affidavit but since it was directed primarily to the court for its action, we will consider the sufficiency of the affidavit.

Rule 14(1) (Ill. Rev Stats 1963, c 110, § 101.14(1)) provides that:

If either party applies for a continuance of a cause on account of the absence of material evidence, the motion shall be supported by the affidavit of the party so applying or his authorized agent, showing that due diligence has been used to obtain the evidence, or the want of time to obtain it, and of what particular fact or facts the same consists, and if the evidence consists of the testimony of a witness, his place of residence, or if his place of residence is not known, showing that due diligence has been used to ascertain the same, and that if further time is given the evidence can be procured. (Emphasis supplied.)

Plaintiff's affidavit lacks specificity as to what facts the witness would testify to. Therefore, the court could not ascertain whether the evidence was material *fn4 and the other party could not determine whether or not to admit the affidavit in evidence as proof of what the absent witness would testify to if present. *fn5

In addition, Rule 14(6) (Ill. Rev Stats 1963, c 110, § 101.14(6)) provides that "No motion for the continuance of a cause made after the cause has been reached for trial shall be heard, unless a sufficient excuse is shown for the delay." The affidavit does not state when the affiant discovered the unavailability of the witness and therefore the court could not adjudge whether his activities in finding witness' whereabouts were diligent and whether his request for delay on the trial date offered a sufficient excuse.

Plaintiff does not argue that the judge abused his discretion. She urges that the dismissal results in an injustice and quotes from Lynch v. Illinois Hospital Services, Inc., 38 Ill. App.2d 470, 187 N.E.2d 330, in which the court vacated a default judgment: "We believe the overriding rule that should determine cases of this character, is whether or not justice is being done." (Emphasis supplied.)

Plaintiff then cites Krupinski v. Denison, 9 Ill. App.2d 155, 132 N.E.2d 451, to show that the same principle applies to a case dismissed for want of prosecution. However, in that case plaintiffs' motion for a continuance showed that they were ready for trial on February 21st; that the Clerk of the Court advised plaintiffs on February 19th that the case would probably not be reached until February 23rd; that plaintiffs' witness was not available for the 23rd. The opinion states at page 159:

The unfortunate and unavoidable circumstance necessitating the change in the trial date cannot be charged to lack of diligence on the part of the plaintiffs.

We think the affidavit of plaintiffs' attorney shows that under the existing circumstances due diligence was exercised to obtain the testimony of their physician whose testimony ...


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