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Ahlstrom v. City of Chicago

JULY 21, 1966.

JOHN AHLSTROM, A MINOR, BY FRED AHLSTROM, HIS FATHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



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

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied September 12, 1966.

This is an appeal from an order dismissing this case for want of prosecution, and from the order denying the plaintiff's motion to reinstate the case.

On June 11, 1963, the case was called for trial by the assignment judge of the circuit court. At 3:45 p.m. on that day the case was assigned to Judge Pavlik for trial. Jack Levin, an attorney associated with Nat P. Ozmon, who was to be the trial attorney in this case, proceeded to the courtroom of Judge Pavlik and advised him that Nat P. Ozmon was engaged before Judge Napoli and was at that time in the process of giving a closing argument. He advised the judge that Mr. Ozmon would complete the oral argument that afternoon and the judge set the case for 10:00 a.m. on June 12, 1963, being the next day. The affidavits of Nat P. Ozmon and Jack M. Levin state that prior to the assignment of this case to Judge Pavlik the assignment judge assigned the case of Gordon v. City of Chicago to Judge Paschen for trial. The affidavits do not indicate how long prior the Gordon case had been assigned to Judge Paschen for trial, but in the argument on the motion Mr. Ozmon stated that the Gordon case had been assigned the same day. Nat P. Ozmon was the attorney prepared to try both cases. Judge Paschen set the case of Gordon v. City of Chicago to begin trial at 10:00 a.m. on June 12, 1963, being the same hour and day on which this case was set before Judge Pavlik for trial. The next morning, June 12, 1963, Mr. Ozmon went to Judge Paschen's courtroom at 10:00 a.m., feeling, according to his affidavit, that the case of Gordon v. City of Chicago could be disposed of in a short time by settlement. After leaving Judge Paschen's courtroom he arrived in the courtroom of Judge Pavlik at approximately 10:40 a.m., and was there shown a signed draft order to the effect that the instant case had been dismissed for want of prosecution.

The affidavit of Jack Levin showed that from 9:30 a.m. to 11:00 a.m. he was occupied before the assignment judge. Charles R. Winkler, another attorney associated with Mr. Ozmon, was before Judge Hermes from 9:30 a.m. to 11:00 a.m. The affidavits of Nat P. Ozmon and Jack M. Levin do not state on what day Jack Levin was occupied before the assignment judge, nor on what day Charles R. Winkler, another attorney, was before Judge Hermes. However, the affidavits showed that Milroy R. Blowitz, a partner of Mr. Ozmon, was ill, and not present in the office on the morning of June 12, 1963, and further alleges there were no other attorneys available from the office of Nat P. Ozmon. Mr. Ozmon further set forth in his affidavit that his delay until approximately 10:40 a.m. on the morning of June 12, 1963, was unforeseen and inadvertent. The affidavit also showed that the plaintiff is a minor and has sustained substantial injuries.

On the same day a notice of a motion to reinstate was served upon the defendant and was presented to Judge Pavlik at 2:00 o'clock. The record discloses that after this case was dismissed by Judge Pavlik another case had been assigned to him and was also dismissed for want of prosecution prior to 10:40 a.m. on June 12, 1963. A third case was assigned to Judge Pavlik on June 12, 1963, and had already been set for trial at 10:00 o'clock on June 13, 1963. Judge Pavlik, during the argument on the motion, advised the plaintiff that he had been ready to proceed with trial of this case on June 11, 1963, at 3:45 p.m., when the case was first assigned to him, and upon being apprised of Mr. Ozmon's engagement before Judge Napoli in a closing argument which would be concluded the same afternoon, he held the instant case for trial on June 12, 1963, at 10:00 o'clock. Judge Pavlik during the course of the argument also advised the attorney for the plaintiff that all reasons for not going to trial immediately are resolved by the assignment judge; that a case assigned for trial is for the purpose of proceeding with the trial. The plaintiff then requested Judge Pavlik to reserve his ruling until plaintiff produced an authority Leong v. Railroad Transfer Service, 302 F.2d 555, the citation of which he did not have with him. Mr. Ozmon then requested that a draft order be entered but the trial judge said that would not be necessary. The following then transpired:

"Mr. Ozmon: Could we set this for — Say, Friday morning and I will see you get the case before, but, set for 9:30 Friday morning?

"The Court: Yes and we can dispose of it promptly.

"Mr. Ozmon: Is that all right with you, Counsel?

"Mr. Brandt: Fine.

"The Court: Okay."

This concluded the hearing on June 12, 1963.

The record does not disclose any proceeding between June 12, 1963, and June 16, 1965, more than two years later, when the plaintiff called up his motion to vacate the dismissal order filed on June 12, 1963. When additional argument was heard on the motion the plaintiff asked and obtained leave to file an additional affidavit in support of his motion. The additional affidavit was that of Milroy R. Blowitz, which stated that he was a partner in the law firm of Blowitz and Ozmon, the firm representing the plaintiff at the time of the dismissal of this case on June 12, 1963; that this case was prepared for trial and to his knowledge was ready for trial with subpoenas prepared for the various witnesses and the plaintiff instructed to be in his office at 9:00 a.m. on June 12, 1963, and on information he stated that the plaintiff was in his office as instructed. Attached to Mr. Blowitz's affidavit was a copy of a letter dated July 18, 1963, addressed to Judge Pavlik regarding this case, notifying the judge that there had been no ruling on the pending motion. This was sent as a reminder that the motion was still pending.

The plaintiff contends: (1) It is an abuse of discretion to hold a matter under advisement for two years and then refuse to reinstate it; (2) the desire to eliminate the court backlog is to promote justice, and (3) the ...


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