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Hoffmann v. Hoffmann

OPINION FILED JUNE 21, 1968.

ELIZABETH HOFFMANN, APPELLEE,

v.

EUGENE

v.

HOFFMANN, APPELLANT.



APPEAL from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. JAMES H. FELT, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 24, 1968.

Eugene V. Hoffmann, the appellant, was granted a divorce in the circuit court of Cook County on his cross-complaint for divorce against Elizabeth Hoffmann, his wife and the appellee, on the ground of extreme and repeated cruelty. Elizabeth Hoffmann appealed from that judgment to the Appellate Court for the First District, contending inter alia, that the circuit court had erred in denying her petition for a change of venue. The appellate court agreed and reversed and remanded the cause to the circuit court of Cook County. (86 Ill. App.2d 374.) We granted the appellant's petition for leave to appeal.

On April 13, 1964, Elizabeth Hoffmann filed a complaint for divorce, injunctive relief and alienation of affections, and on September 16, 1964, the appellant presented his cross-complaint for divorce. On October 2, 1964, on the motion of the appellant, the cause was set for trial before Judge Robert Hunter. On October 26, 1964, Judge Hunter continued the matter on the motion of the appellee and reset it for trial on December 1, 1964, and included in the order the notation "final continuance."

On December 1, 1964, the appellee presented another motion for continuance asserting that she was unprepared for trial since she had been unable to complete certain pretrial discovery actions. The motion was denied and Judge Hunter entered an order assigning the case to Judge James Felt for trial.

Later that morning the appellee renewed her motion before Judge Felt for a continuance, which motion was denied. At the appellee's request, however, Judge Felt held over the proceedings until 2:30 P.M. When the case was then called the appellee moved for a change of venue alleging that she could not receive a fair trial before Judge Felt because the judge was prejudiced against her and this prejudice had first come to her knowledge on that day.

Part of the colloquy on the hearing of the motion was:

"The Court: You say you think it is well taken. [The motion for a change of venue.] Will you state the reasons why you think it is well taken?

Mr. Jares: [For the appellee] 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 and we do not feel we can get a fair and impartial trial.

Mr. Abraham: [For the appellant] That statement alone —

Mr. Jares: I am not making this, your Honor, and if you wish to question Mrs. Hoffmann, of course you can.

The Court: Well, counsel, you present a petition, say you will not receive a fair and impartial trial in this court, and I would like to hear the reason why she believes she would not receive a fair and impartial trial.

Mr. Jares: Would you like to call ...


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