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Schroeder v. Busenhart

MAY 20, 1971.

GERALD A. SCHROEDER ET AL., PLAINTIFFS-APPELLANTS,

v.

J.C. BUSENHART ET AL., DEFENDANTS-APPELLEES — (LATTOF MOTOR SALES, INC., DEFENDANT.)



APPEAL from the Circuit Court of Cook County; the Hon. ABRAHAM BRUSSELL, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

This is an appeal by plaintiffs from a judgment of $16,168.46 made to defendants for attorneys' fees and expenses pursuant to defendants' petition filed under Section 41 of the Civil Practice Act. A direct appeal was taken to the Illinois Supreme Court by plaintiffs. The Supreme Court directed that this court hear the appeal. On oral argument in this court, plaintiffs' counsel agreed that the constitutional issues raised by them in their briefs were foreclosed by the action of the Supreme Court in transferring the case to this court.

We affirm.

This case is yet another in this "apparently unending litigation." (Schroeder v. Busenhart, 80 Ill. App.2d 431, 441, 225 N.E.2d 702.) The history of the litigation is discussed at great length at pages 434-8 of 80 Ill. App.2d 431, and 703-5 of 225 N.E.2d 702. At that time this court decided, and it is res judicata in this appeal, that the plaintiffs had filed a suit without reasonable cause, not in good faith and untrue, so as to subject the plaintiffs to the provisions of Section 41 of the Civil Practice Act which states in its entirety:

"Untrue statements. Allegations and denials, made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney's fee, to be summarily taxed by the court at the trial. Ill. Rev. Stat. (1963) ch. 110, sec. 41."

Pursuant to the mandate of this Court, the matter was returned to the Circuit Court of Cook County for a hearing to determine the amount of attorneys' fees and expenses to be assessed against the plaintiffs.

The case was remanded back to the trial court, and the mandate was forwarded by the Clerk of the Appellate Court to the Clerk of the Circuit Court of Cook County on October 20, 1967.

The record is unclear as to what happened to that mandate, and a new mandate issued on March 13 and was filed with the Clerk of the Circuit Court on March 15, 1968. On April 3, 1968, the cause on motion of the defendants was reinstated and the matter assigned for hearing.

On April 24, 1968, leave was granted to defendants to file an amendment to their Section 41 petition to tax the expenses and attorneys' fees incurred by reason of the appeal. On September 18, 1968, the trial court allowed the then attorney for plaintiffs to withdraw, and set the hearing for October 15, 1968. The order further stated the hearing would "proceed whether or not plaintiffs herein have by that time retained counsel to represent them with respect to said hearing."

On October 15, 1968, the plaintiff's new counsel filed a verified motion for a continuance. This motion was denied. Plaintiffs' new counsel made an oral motion to strike the Section 41 amendment tendered by defendants in the trial court stating that the said amendment was a new complaint.

A review of the record discloses that plaintiffs' new attorney was consulted September 20, 1968, and retained to look into the case. On October 9, 1968, counsel rendered a report to plaintiffs. On October 13, 1968, he was retained to handle the case and appear at the hearing of October 15, 1968.

Between September 28, 1968, and October 14, 1968, plaintiffs were unable to give their new counsel a working file of the case. In the verified motion for a continuance it was alleged that counsel wanted copies of all the pleadings filed after the return of the mandate. After a full hearing on the motion for a continuance, the judge denied the motion based on his order of September 18, 1968.

At the hearing on October 15 and 16, 1968, plaintiffs moved to strike the amendment of April 24, 1968, calling for taxing the expenses and attorneys' fees incurred on the appeal in addition to taxing the expenses and attorneys' fees incurred in the trial court. The trial court reserved ruling on that motion and proceeded to hear evidence on the issues. On November 22, 1968, judgment was entered for defendant taxing expenses and attorneys' fees to plaintiffs of $16,168.46.

Plaintiffs argue that the court arbitrarily abused its discretion in denying their motion for a continuance on October 15. Supreme Court Rule 231 (f) provides that "no motion for the continuance of a cause made after the cause has been reached for trial shall be heard, unless a sufficient ...


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