Appeal from the Circuit Court of Cook County, County
Department, Divorce Division; the Hon. JAMES H. FELT, Judge,
presiding. Decree reversed, cause remanded for a new trial.
Plaintiff appeals from the decree of the Circuit Court of Cook County granting a divorce to her husband, on his counterclaim. This case has been before this court on a prior occasion. (Hoffmann v. Hoffmann, 59 Ill. App.2d 459, 208 N.E.2d 579.)
Plaintiff contends, inter alia, that the court erred in denying her petition for change of venue. Defendant argues that the petition was not timely filed, that it was filed solely for the purpose of obtaining a further continuance, and was properly denied. Consideration of the issues presented requires a chronological review of the proceedings prior to trial.
Plaintiff filed her complaint for divorce and other relief on April 13, 1964. On September 16, 1964, after various proceedings and pleadings, her husband, hereinafter referred to as defendant, filed a counterclaim for divorce. On the same date, plaintiff filed her answer to the counterclaim. On October 2, 1964, defendant gave notice of presentation of a motion for immediate trial, and on that date an order was entered setting the case for trial before Judge Robert L. Hunter on October 26, 1964. Plaintiff gave notice of presentation of a motion to remove the case from the trial calendar and on October 26, 1964, Judge Hunter removed the case from the calendar and entered the following order:
"It is hereby ordered that the above entitled cause be set for trial on December 1, 1964 at 9:30 A.M., final continuance."
On November 27, 1964, Judge George Fiedler entered an order setting for hearing, on January 20, 1965, petitions for arrearage in temporary support payments and for attorney fees.
On December 1, 1964, plaintiff filed a motion for continuance. The supporting affidavit recites the pendency of the prior appeal, and the petitions, and plaintiff's inability, because of actions of the defendant, to complete discovery procedures. The record does not reflect the disposition of this motion, but the parties are in agreement that it was denied, and Judge Hunter entered an order assigning the case to Judge Felt.
When the case was called for trial before Judge Felt, late in the morning of December 1, 1964, plaintiff renewed her motion for continuance. Judge Felt denied the motion, and at plaintiff's request, postponed the proceedings until 2:30 p.m.
At 2:30 p.m. plaintiff's counsel presented a petition for change of venue, in which plaintiff stated that the case had been assigned for trial to Judge Felt, that she feared she would not receive a fair trial because the judge is prejudiced against her, and she learned of this prejudice on December 1, 1964. The petition asked that a judge other than Judge Felt be designated to hear the case. Defendant has not pointed out any deficiency in the petition nor does he contend that it fails to comply with the provisions of the statutes.
Plaintiff's counsel stated to the court that plaintiff had suggested the filing of the petition and concluded his remarks:
"Now, I think it is well taken, it is properly presented. It is the first opportunity I have had to present it."
Thereupon the following colloquy ensued:
"THE COURT: You say you think it is well taken. Will you state the reasons why you think it is well taken?
"MR. JARES: By reason of my client's insistence that there be a change of venue, because of the sudden assigning of this case, your Honor, and the fact we are on trial. We are not ready, we have asked for a continuance ...