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Dear v. Locke

SEPTEMBER 1, 1970.

SALLY D. DEAR, PLAINTIFF-APPELLANT,

v.

PHILIP F. LOCKE, ROBERT M. HAENISCH, STANLEY A. LYNCH, STANLEY A. LANGE, AND RALPH C. DEAR, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of DuPage County, Eighteenth Judicial Circuit; the Hon. LLOYD A. VAN DEUSEN, Judge, presiding. Judgment and orders affirmed.

JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT. This appeal is brought by the plaintiff, pro se, from an order denying her leave to plead as a poor person and orders dismissing all defendants joined herein.

The plaintiff, on November 27, 1968, filed a three-count complaint for false imprisonment, malicious prosecution and "intimidation." In count one, she alleged that the defendant, Philip Locke, a circuit judge, on November 22, 1966, verbally ordered her to appear before him with her children on November 25, 1966, to participate in a hearing to determine visitation rights of defendant, Ralph Dear, father of their children; that the judge had no jurisdiction to so order because she had perfected an appeal in the matter; that she did not appear; that the judge's secretary called the plaintiff on the morning of November 25, 1966, and that she, afterward, in company with the children, left the county; that the judge, on his own motion, entered an order commanding the clerk, defendant Robert M. Haenisch, to issue a writ of attachment and the same was issued; that a deputy sheriff was unable to locate the plaintiff that morning; that on November 28, 1966, the plaintiff filed a short record in this Court pursuant to her appeal aforementioned; that on this same day the defendant Stanley Lange, a deputy sheriff under defendant Stanley A. Lynch, sheriff, took her into custody under the writ of attachment; that at about 4:05 p.m. she was "booked . . . fingerprinted, deprived of her possessions and put into a cell against her will"; that about 5:00 p.m. she was brought before the judge; that a hearing on visitation rights was had (to which she objected on the grounds that the court was without jurisdiction), and concluded at 6:00 p.m. when she was released without being cited for contempt; that the acts of the defendants were malicious and constituted unlawful restraint to her damage, both actual and exemplary.

The second count reiterated the above and alleged that she had been injured in her credit and reputation; that such acts constituted malicious prosecution by defendants Locke and Dear, and that she had suffered both actual and exemplary damages. The third count, directed against the latter two named defendants, realleged the same acts set forth in count one and was based upon intimidation under section 12-6 of the Criminal Code (Ill Rev Stats 1965, c 38, § 12-6), (for which a penalty is invoked), and that she was entitled to damages.

On March 27, 1969, the plaintiff filed a motion for leave to prosecute her action as a poor person and for the appointment of counsel. (Ill Rev Stats 1967, c 33, § 5.) The motion was supported by affidavit which set forth the financial status of the plaintiff. This was denied, after hearing, by the court.

Defendant Dear filed a motion to dismiss the complaint on the basis that it failed to state a cause of action against him. Defendants Haenisch, Lynch and Lange filed motions for summary judgment and dismissal relying upon sections 8-102 and 8-103 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill Rev Stats 1967, c 85, §§ 8-102, 8-103). Defendant, Locke, filed a motion for judgment on the pleadings grounded upon the fact that the complaint failed to state a cause of action for damages against him while in the performance of his judicial duties. The trial court allowed the motions of all defendants and this appeal followed.

The plaintiff claims that (1) the denial of her motion for leave to prosecute as a poor person and the appointment of counsel was an abuse of discretion; (2) denial of counsel deprived her of due process and equal protection under the law; (3) that the complaint was sufficient to state a cause of action against defendant Dear; (4) that the doctrine of judicial immunity did not bar her action against defendant Locke and (5) that the tort immunity act did not bar her action against defendants Haenisch, Lynch and Lange.

Plaintiff, in support of her motion to plead as a poor person and to have a lawyer appointed, filed an affidavit pursuant to Supreme Court Rule 298 (Ill Rev Stats 1967, c 110A, § 298), which in its relevant averments stated that the plaintiff's occupation is that of a mother and homemaker; that support payments from defendant Dear constituted her only means of subsistence for herself and her two sons; that the support payments amounted to $5,350 in 1968; that her income for 1969 was uncertain due to litigation, but may be as little as $4,160, but would not exceed $5,720; that the ownership of the house in which she lived was not clear due to litigation and that there would probably be no equity in it if she did sell it; that she applied to plead as a poor person involving litigation with defendant Dear in 1968, and the court allowed her previous applications pursuant to chapter 40, section 16; that she is a poor person unable to prosecute this suit or pay the costs and expense thereof; and that she believes she has a good cause of action and a meritorious claim upon which she will recover at law.

[1-4] It has long been established in this state that leave to prosecute an action as a poor person pursuant to section 5 of the Costs Act (Ill Rev Stats 1967, c 33, § 5) is within the sound discretion of the trial court, subject to reversal when such discretion has been abused, Beal v. Pratt, 67 Ill. App. 483, 484 (1896). Section 5, supra, states that after the court is satisfied that the plaintiff or defendant is a poor person it "may assign to such person counsel, who . . . shall perform their duties in such suit without any fees, charge or reward. . . ." While it is not necessary that one be a pauper to be granted leave to plead as a poor person (see, The People v. Chytraus, 228 Ill. 194, 200 (1907)), the trial court, in the case at bar, could have reasonably concluded that plaintiff was not a poor person within the meaning of section 5. Considering the plaintiff's averments in her affidavit in support of her motion to plead as a poor person, this court is of the opinion that the trial court did not abuse its discretion in denying the plaintiff's motion.

Plaintiff next contends that she was denied due process and equal protection of the law when the trial court denied her court appointed counsel. She cites, The People v. Lewis, 413 Ill. 116, 108 N.E.2d 473 (1952) as her sole authority. The court in the Lewis case concluded that the defendant was not afforded the procedural safeguards necessary for a fair trial because only 24 hours had elapsed between the defendant's arrest and sentence. During the 24-hour period she had been surrounded by only the police and prosecuting authorities. The testimony in that case showed that the defendant was in a highly emotional and confused state of mind.

The circumstances in the Lewis case and the instant case are radically different; the former was a criminal matter, while the case at bar is a civil proceeding. In addition, the plaintiff in the case at bar, took two years to file her complaint after the cause of action accrued. Plaintiff then waited an additional 2 months before asking leave to plead as a poor person and have counsel appointed. The plaintiff, presumably, was receiving her support payments from her former husband during the above periods.

Considering the above circumstances, and in reviewing the record of the case at bar, this Court finds no merit to plaintiff's contention that she was denied due process and equal protection of the laws by the trial court's denial of court appointed counsel.

Plaintiff's next contention is that her complaint was sufficient to state a cause of action against the defendant Dear. The plaintiff in substance alleges in her complaint that this defendant went to her home and "snatched" her daughter after she was taken into custody. Plaintiff then alleged that Judge Locke entered a visitation order for the benefit of defendant Dear.

Based upon these allegations, she argues that she stated a good cause of action for false imprisonment and cites, as her authority on this point, ILP, False Imprisonment, § 6, which, in part, states:

"In order that a person may be liable for false imprisonment, it must appear that he personally participated therein by direct ...


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