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Mullaney, Wells & Co. v. Savage

MARCH 17, 1972.

MULLANEY, WELLS & COMPANY, PLAINTIFF-APPELLEE,

v.

BARNARD A. SAVAGE, JR. ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS T. DELANEY, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 2, 1972.

This is an appeal by permission under Rule 308 of the Supreme Court, (Ill. Rev. Stat. 1969, ch. 110A, par. 308), from an interlocutory order, (a) ordering former master in chancery and now associate judge Seymour S. Price to certify the record including his preliminary report, (b) ordering defendants to file their objections to said report within five days, and (c) determining that the trial court would hear the objections to said report and "upon disposition thereof, if there are exceptions, the Court will rule upon the same and decide this cause."

This action was commenced in 1963. In its second amended complaint, as amended, plaintiff charged defendant Savage with breach of contract and breach of fiduciary duty in taking for his own use, in combination with defendants Williams and Glen Ellyn Corporation, a corporate business opportunity which plaintiff contends belonged to it. On February 26, 1965, the case was referred to Seymour Price, then a master in chancery, to take testimony and report his conclusions of fact and law to the court. On December 3, 1965, an order was entered finding that testimony had been received by the master, that his term in office would expire on December 6, 1965, and that justice required his continuing to act as master thereafter to conclude the matter referred to him. 2500 pages of testimony were taken and 400 exhibits introduced. On February 1, 1971, the master made his preliminary report containing his proposed findings of fact and conclusions of law and recommended that the defendants be held jointly and severally liable to the plaintiff "in the amount of $800,000 and for other sums."

Defendants were given ten days to file objections. However, they applied for and received from Master Price extensions of time to file the objections. In granting a final extension to May 12, 1971, the master informed defendants that any request for further extensions must be submitted to the trial court. Defendants did apply for another extension which the court granted to July 16, 1971. On June 21, 1971, Master Price took office as a magistrate of the circuit court of Cook County. Pursuant to Section 4(a) of the Transition Schedule of the 1970 Illinois Constitution, he, along with the other magistrates in office on July 1, 1971, became an associate judge. The record and the master's preliminary report were never certified to the court by Price. On July 15, 1971, defendant Savage filed a motion requesting that Price be disqualified from further acting as a master and that a trial de novo be ordered. The trial judge ordered that Price certify the record including the preliminary report, and that defendants file objections within five days and that he would hear and rule on them.

Two issues are presented on appeal: (1) whether Associate Judge Price has jurisdiction to finish this case in the capacity of master in chancery and (2) assuming that Judge Price no longer has jurisdiction, whether defendants' right to due procee of law require that a trial de novo be held since under the court's order, objections to the master's preliminary report are to be made before a judge who did not hear the witnesses and observe their demeanor.

With reference to the first issue, defendants argue that Price is disqualified from certifying his report as a master and from continuing to act as master in chancery to hear defendants' objections to the preliminary report.

In People ex rel. Martoccio v. Atten, 42 Ill.2d 212, 246 N.E.2d 265, an analogous situation arose. Gordon Moffet was assigned to the case as master in chancery in 1963. He heard the plaintiff's evidence. Defendant then moved for a finding in his favor. Moffet filed a report denying the motion. Thereafter Moffet was appointed a magistrate of the circuit court. The respondent judge ordered Moffet to conclude the hearings in the case. Defendant-petitioner sought a mandamus to expunge the judge's order contending that Moffet no longer had jurisdiction to hear the case as a special master since he occupied the office of magistrate.

The court noted that under Section 8 of the 1962 revised version of Article VI of the 1870 Illinois Constitution (Ill. Const. art. 6, par. 8), effective January 1, 1964, masters in chancery were abolished:

"There shall be no masters in chancery or other fee officers in the judicial system."

But as the court stated, paragraph 8 of the schedule attached to Article VI, established a transition period for this abolition by providing as follows:

"Notwithstanding the provisions of Section 8 of this Article, masters in chancery and referees in office in any court on the Effective Date of this Article shall be continued as masters in chancery or referees, respectively, until the expiration of their terms, and may thereafter by order of court, wherever justice requires, conclude matters in which testimony has been received."

The court then noted that Section 7 of the Magistrates Act, (Ill. Rev. Stat. 1967, ch. 37, par. 627), stated that:

"Nothing herein contained shall authorize the delegation or assignment to magistrates or others of the function heretofore exercised by masters in chancery or referees, or special commissioners of taking testimony for the purpose of making or ...


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