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Rosewood Corp. v. Transamerica Ins. Co.

NOVEMBER 8, 1972.

ROSEWOOD CORPORATION, PLAINTIFF-APPELLANT,

v.

TRANSAMERICA INSURANCE COMPANY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. NATHAN M. COHEN, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

In 1964, Rosewood Corporation contracted to convey title to a three-bedroom brick residence to defendants, Chester and Julia Fisher, for $24,500 with $1950 down and a deferred balance of $22,500 payable in monthly installments. In April, 1969, plaintiff brought a Forcible Entry and Detainer action against the Fishers alleging that the payments were not being made, that the payments were in arrears in the amount of $2800, and praying for possession of the premises. The case was tried and plaintiff obtained a judgment for possession. The Fishers filed a bond with defendant, Transamerica Insurance Co., as surety and appealed from that judgment. The Supreme Court of Illinois subsequently reversed the judgment (Rosewood Corp. v. Fisher, 46 Ill.2d 249, 263 N.E.2d 833), holding that the Fishers should have been permitted to present their equitable defenses to the action in the court below. Upon remand, plaintiff initiated the action at bar on the appeal bond to collect the delinquent payments under the contract.

The appeal bond which was filed, however, did not comply with the requirements set out for bonds in par. 20 of the Forcible Entry and Detainer Act. (Ill. Rev. Stat. 1969, ch. 57, par. 1, et seq.) The complaint therefore prayed for reformation of the bond to comply with the requirements of the statute and for judgment in the amount of the defaulted payments. The action was assigned to Judge Nathan Cohen of the Chancery Division of the Circuit Court and plaintiff filed a timely motion for a change of venue from Judge Cohen and also named three other judges assigned to the Chancery Division. The motion did not specify grounds for disqualification of any of the judges. The motion was denied and both parties then moved for summary judgment on the pleadings. The court denied plaintiff's motion to reform the bond and granted defendant's second motion for summary judgment holding that the bond was void because defendants had prevailed in the Forcible Entry and Detainer Action and because the bond section (Ill. Rev. Stat., ch. 57, par. 20), of the Act requires coverage only for "rent," not contract payments. Plaintiff appeals from those decisions.

OPINION

• 1 Ill. Rev. Stat. 1969, ch. 146, par. 7, provides for changes of venue in civil cases. The statute states:

"A change of venue in any civil suit or proceeding in law or equity * * * may be had in any of the following cases:

"Second — Where either party shall fear that he will not receive a fair trial in the court in which the suit or proceeding is pending, because the inhabitants of the county are or the judge is prejudiced against him * * *."

This provision has been construed to allow a party one change of venue in any action as a matter of right without the necessity of specifying reasons therefor, and there is no discretion in the trial court to deny a first request for a change of venue. (Gates v. Gates, 38 Ill. App.2d 446, 187 N.E.2d 460; Cory Corp. v. Fitzgerald, 335 Ill. App. 579, 82 N.E.2d 485; Musolino v. Checker Taxi Co., 110 Ill. App.2d 42, 249 N.E.2d 150.) This construction is a judicially developed exception to the statute which generally requires parties to state reasons for their claims of prejudice. Bartkowski v. Hoefeld, 226 Ill. App. 198.

The case at bar, however, presents a situation where a change of venue was denied because plaintiff named more than one judge in his motion and did not state specific grounds for the disqualification of the remaining three judges. The question with which we are presented is whether the addition of more than one judge to such a motion is grounds for a denial of any change of venue in a civil case.

• 2 The courts of Illinois have consistently looked with great disfavor upon any abuse of the Venue Statute, and it is settled that such an abuse is grounds for a denial of any requested change. (Johnson v. United Motor Coach Co., 66 Ill. App.2d 295, 214 N.E.2d 326; Paramount Paper Tube Corp. v. Capital Engineering, 11 Ill. App.2d 456, 138 N.E.2d 81.) Therefore if the motion at bar can be characterized as an abuse of the statute on its face, the denial of the motion was proper.

• 3 Although this court has not found any direct authority which would sustain this proposition, our Supreme Court has spoken on the subject. In Balaszek v. Blaszak, 405 Ill. 36, 89 N.E.2d 796, the court said in dicta:

"We might remark that, while we know of no direct authority requiring specifications of grounds of prejudice as against a single judge, we think it extremely unusual that an application should be made against a number of judges, without any reason being assigned as to why all of them have a personal prejudice. It is not a practice that appeals to us." 405 Ill. 36, 40-41.

While this court looks with equal disfavor upon the practice, we are also aware that an initial change of venue is considered a substantial right and that a request for such change must be liberally construed to permit rather than defeat the right to a change of venue. (Caprata v. Black, 127 Ill. App.2d 363, 262 N.E.2d 483; Johnson Motor Coach Co., supra.) With this in mind, it is argued that Judge Cohen should have granted the change of venue from himself and treated the names of the other three judges in the motion as mere surplusage when reassigning the case. This procedure would protect the movant's right to one change of venue and disallow the improper requests contained in the petition. While this proposition is an appealing compromise, we are not convinced that it is in accordance with established judicial policy of the state.

In City of Chicago v. Marquardt, 30 Ill. App.2d 108, 173 N.E.2d 825, this court was confronted with an analogous, though more extreme, situation. There the movant had named twenty-six of the thirty-six sitting Municipal Court judges in his petition for a change of venue, and he had failed to specify grounds for their ...


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