Appeal from the Circuit Court of Cook County; the Hon. ALBERT
E. HALLETT, Judge, presiding. Affirmed in part; reversed in part
and remanded with directions.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
This is a libel action. Plaintiff appeals from a summary judgment entered in favor of defendants. Defendants cross-appeal from the denial of their motion to have an assessment of costs and attorneys' fees and for relief under sections 41 and 57(5) of the Civil Practice Act.
Plaintiff's primary contention is that the publication of a newspaper article by defendants constituted actionable libel. The article appeared in the April 16, 1965, issue of the "Chicago Daily Law Bulletin," a publication of the defendant Law Bulletin Publishing Company, and consisted of the following:
"This department, to cover personal injury trials, has been established on a tentative basis at the request of a number of lawyers. It can only be maintained through the cooperation of the trial lawyers. The editors of The Bulletin would be pleased to receive comments on this venture from its readers.
"GENERAL NUMBER AND TITLE:
"58 S 16262 Peter S. Sarelas v. Constantine D. Chapralis, alias Major C.D. Chapralis and the Greek-American Publishing Co.
"Libel in any language: Plaintiff-attorney brought suit against the defendant C.D. Chapralis, a former major in the Greek Army and publisher of a Greek-American publication for allegedly referring to the plaintiff in a newspaper article as `exallos kai allofrom' (phonetic spelling).
"Plaintiff interpreted this phrase or word to mean in English `maniac' or `crazed.' In his closing argument defendant's attorney reminded the jury of the old adage: `Sticks and stones will break my bones, but names will never hurt me.'
"Jury finding April 15 in favor of plaintiff and against defendants for $1.
"Case assigned April 2 to Judge Irving Landesman.
"ATTORNEY FOR PLAINTIFF: Peter S. Sarelas, pro se.
"ATTORNEY FOR DEFENDANTS: Peter J. Tatooles."
Plaintiff filed his complaint on April 15, 1966. On June 29, 1967, after a hearing in which the court considered pleadings, affidavits, exhibits, plaintiff's counteraffidavits, and plaintiff's renewed motion to "transfer venue to another county," an order was entered by the trial court as follows:
That there is no genuine issue as to any material fact;
That as a matter of law the publication complained of herein was and is privileged; and
That the defendants herein are entitled to judgment as a matter of law;
WHEREFORE, It Is Hereby Ordered that the plaintiff's motion to transfer venue to another County and to strike or deny the motion of defendants for summary judgment be and the same are hereby denied;
IT IS FURTHER ORDERED that the motion of the defendants for summary judgment be and the same is hereby granted;
IT IS FURTHER ORDERED that summary judgment be and is hereby entered in favor of the defendants and against plaintiff; and that plaintiff take nothing by his said suit;
IT IS FURTHER ORDERED that the Defendants have and recover their costs of and from the Plaintiff.
This is the order from which plaintiff appeals.
The following issues are presented by plaintiff's appeal:
(1) whether the trial court improperly denied plaintiff's petition for a change of venue from all of the judges of Cook County; (2) whether the publication in question was privileged; (3) whether plaintiff was improperly "deprived of his constitutional right to jury trial of fact questions by the granting of defendants' motion for a summary judgment"; and (4) whether defendants complied with Supreme Court Rule 323 in their nonverbatim "Proposed Report of Proceedings."
Initially considered is plaintiff's contention that the trial court improperly denied his petition for a change of venue from all the judges of the Circuit Court of Cook County.
Defendants' motion for summary judgment was filed on August 4, 1966. Later in 1966 it was assigned to Judge Ben Schwartz for hearing. After a number of continuances, during which additional and supplemental pleadings were filed by both sides, plaintiff on May 3, 1967, filed his petition for change of venue from Judge Schwartz and from all of the judges of Cook County. In this petition plaintiff charged that the "defendants through their customs and practices" of distributing gratuitously to the judges of Cook County certain of defendants' publications "exercise an undue influence" over all of the judges of Cook County. On May 3, 1967, Judge Schwartz entered an order granting a change of venue from himself and ordered that that part of the petition which asked for a change of venue from all of the judges of Cook County be referred to Judge Harold Ward. On May 8, 1967, Judge Ward denied the petition for a change of venue from all of the judges in Cook County and referred the cause to Judge Hallett for a hearing on defendants' motion for a summary judgment.
On June 28, 1967, plaintiff filed "Objections of Plaintiff to the Jurisdiction of the Court," in which plaintiff alleged that the venue order of May 8, 1967, of Judge Ward was entered without jurisdiction and void, and plaintiff renewed his request for a change of venue from all of the judges of Cook County.
Plaintiff contends that when Judge Schwartz entered his venue order of May 3, 1967, the trial court lost jurisdiction over the case except to make a formal order transferring venue to a judge outside of Cook County. Plaintiff relies on the provisions of section 2 of the Venue Act (Ill Rev Stats, c 146), and his authorities include People v. Scott, 326 Ill. 327, 157 N.E. 247 (1927); Mockler v. David F. Thomas & Co., 273 Ill. App. 121 (1933); and Talbot v. Stanton, 327 Ill. App. 491, 64 N.E.2d 388 (1946). In People v. Scott, supra, the court said (p 342):
"Under the statute no discretion is given to the court where a petition for a change of venue is made on account of the prejudice of the trial judge. . . . The statute gives an absolute right to a change of venue to the petitioner when his petition is duly made and verified and filed in accordance with the statute."
In Talbot v. Stanton, supra, it is said (p 496):
"A change of venue is a substantial right of a litigant, not merely a ...