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Leonard v. Walsh

MAY 9, 1966.

DR. T.P. LEONARD, PLAINTIFF-APPELLEE,

v.

THOMAS WALSH, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Macon County; the Hon. JOHN P. SHONKWILER, Judge, presiding. Reversed and remanded with directions.

CRAVEN, J.

This action originated in the magistrate's division of the circuit court of Macon County, in the form of a small claims complaint to collect $50 for medical services allegedly rendered by the plaintiff to the defendant. The action was instituted and the complaint signed by one "B.J. Smith agent for Dr. T.P. Leonard."

The defendant, by special and limited appearance, filed a motion for change of venue, asserting his residence to be in Logan County, and further alleging that the plaintiff had not rendered any medical services to the defendant in Macon County. The motion to dismiss was denied. Subsequently, judgment was entered against the defendant by default. This appeal is from that judgment. The record of proceedings from recollection indicates this cause of action to be predicated upon the following facts.

The defendant, an attorney, who resides in Logan County, requested the plaintiff, a resident of Macon County, to come to Logan County to testify on behalf of defendant's client in pending litigation. Plaintiff agreed and did appear in Logan County for purposes of testimony. The request to testify was made of the plaintiff in Macon County.

The sole contention of the defendant here is that the judgment is "manifestly wrong" and in contravention of the venue provisions of the Civil Practice Act.

Section 5, c 110, Ill Rev Stats 1963, provides:

"Except as otherwise provided in this Act, every action must be commenced (a) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him and not solely for the purpose of fixing venue in that county, or (b) in the county in which the transaction or some part thereof occurred out of which the cause of action arose."

The phrase, placing venue "in the county in which the transaction or some part thereof occurred out of which the cause of action arose," is determinative of the venue issue raised by this appeal. It is not necessary, as the defendant contends, either that the defendant reside in Macon County or that the medical services were performed in that county; rather, it is only required that some part of the transaction occurred in that county. It is clear from this record that such was the fact. The motion for change of venue was properly denied. Standard Mut. Ins. Co. v. Kinsolving, 26 Ill. App.2d 180, 167 N.E.2d 241 (1960); Consolidated Gasoline Co. v. Lexow, 316 Ill. App. 257, 44 N.E.2d 927 (1942).

This record shows this proceeding to have been instituted on behalf of an individual plaintiff by one who is described as an agent and who is not an attorney. The decision of this Court in Remole Soil Serv., Inc. v. Benson, filed April 12, 1966, 68 Ill. App.2d 234, 215 N.E.2d 678, requires a reversal of the judgment.

In this case, it is clear that one not licensed to practice law has instituted legal proceedings on behalf of another in a court of record. When this appears the suit should be dismissed, and if it has proceeded to judgment the judgment is void and will be reversed. 7 CJS Attorney and Client, par 16b.

The judgment of the trial court is reversed and this cause is remanded with directions to vacate the judgment and dismiss the suit at the plaintiff's cost.

Reversed and remanded with directions.

TRAPP, P.J. and SMITH, J., ...


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