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Hinduliak v. Inn of Four Lakes

SEPTEMBER 13, 1968.

FRANK HINDULIAK, PLAINTIFF-APPELLEE,

v.

INN OF THE FOUR LAKES, INC., AN ILLINOIS CORPORATION, AUBREY J. GREENBERG, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of DuPage County, Eighteenth Judicial District; the Hon. WILLIAM C. ATTEN, Judge, presiding. Reversed and remanded with directions.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

This is a proceeding wherein the plaintiff sought to enjoin the defendants from interfering with or molesting him in the operation of the restaurant and bar business of the defendant, Inn of the Four Lakes, Inc. On motion of the plaintiff and before the service of summons, the court entered an order for such injunction. Prior to the signing of the order, the court refused to consider or allow a petition for change of venue as requested by one of the defendants. This appeal, from the order for the issuance of injunction, followed.

The defendants responded to the plaintiff's notice of motion for the issuance of temporary injunction and filed a special appearance "contesting the jurisdiction of the Court to hear the motion of the plaintiff before the summons is served on the defendants."

The notice indicated that the motion would be heard by Judge William L. Guild. Due to the magnitude of the motion call, Judge Guild assigned this motion to Judge Philip F. Locke.

The defendant, Fisher, who was present with counsel, requested him to file a petition for change of venue from Judge Locke, based on prejudice. Counsel called his office for the appropriate forms and directed that they be delivered to him at the courthouse.

The attorney for the plaintiff and the attorney for the defendants, then entered Judge Locke's courtroom. The plaintiff's attorney told Judge Locke that he had served notice of hearing, before Judge Guild, on motion for temporary injunction; that "counsel who is not yet of record, has indicated that he wanted to object to the assignment to you"; and that "he is filing a special appearance for the purpose of contesting the jurisdiction."

Counsel for the defendants informed the court that he did have a special appearance, but at the time of filing it he first wished leave to file his petition for change of venue which was being prepared in accordance with the statute. Counsel asked for a continuance of five minutes while he prepared the required petition and affidavit. The court refused this request and granted the defendants leave to file the special appearance only.

When the special appearance was filed, the court directed counsel for the defendants to proceed with it. He informed the court that he could not proceed with it since the law requires that a petition for change of venue be presented at the earliest possible moment; and that proceeding with the special appearance prior to filing a petition for change of venue, would, in his judgment, constitute a waiver of the right to a change of venue.

Counsel made repeated requests for a brief continuance to enable him to prepare proper application and affidavit for change of venue, all of which were cursorily refused. Thereupon, the defendant withdrew from the bench and waited in the hall for the forms for change of venue which were being sent to him. The court then asked the plaintiff to offer evidence on his motion. This was done and the court signed an order, written in longhand, for the issuance of temporary injunction without bond.

At the approximate time when the order for temporary injunction was being signed, counsel for the defendants presented to Judge Locke, an executed petition and affidavit for change of venue. Judge Locke refused to accept such petition. The petition was thereupon filed in the office of the clerk.

This appeal seeks the reversal of the order for the issuance of temporary injunction and the remandment of the cause with directions to grant the requested change of venue. The order for the issuance of an interlocutory injunction is an appealable order under Rule 307 of the Supreme Court (Ill Rev Stats c 110A, par 307).

The threshold question here presented is: whether, under the circumstances of this case, the court properly denied the defendant Fisher's request for a change of venue because a written petition supported by affidavit was not presently prepared and ready for filing, where the request was timely made, and counsel for the defendants indicated that he would immediately draft and present such petition and affidavit. The main issue is the propriety and validity of the injunction order.

In considering the statute with reference to change of venue in civil cases, the court, in People v. Scott, 326 Ill. 327, 157 N.E. 247 (1927), at page 341, stated:

"The spirit of our laws demands that every case, whether a statutory proceeding or otherwise, shall be fairly and impartially tried, and no judge should think of presiding in a case in which his good faith in so doing is open to such serious question as that presented by this record. These provisions of the statute should receive a broad and liberal, rather than a technical and strict, ...


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