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People Ex Rel. Bucaro v. Johnson

NOVEMBER 15, 1972.

THE PEOPLE EX REL. NANCY BUCARO, PLAINTIFF-APPELLEE,

v.

WILLIAM JOHNSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LEROY WINER, Judge, presiding.

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

On January 7, 1971, in the Circuit Court of Cook County, the defendant, William Johnson, was found to be the father of a child born out of wedlock to the complainant, Nancy Bucaro. He was ordered to pay $65 per month to the Illinois Department of Public Aid.

He appeals from the judgment, contending the court erred by denying him a jury trial, by denying his motion for a change of venue, by denying a motion for a continuance, by introducing into the record the results of the non-exculpating blood tests, by refusing to permit the defendant to testify as to the relatrix being in the company of other men, and by admitting hearsay evidence. He also contends he was not proven guilty by a preponderance of the evidence.

The complainant testified she began having sexual relations with the defendant in April of 1969. She testified they continued having intercourse in May, July, August and September of 1969 and once in January of 1970. The defendant testified they stopped having intercourse in May of 1969 except for the one occasion in January of 1970.

Nancy Bucaro gave birth to a child on May 13, 1970, and on October 9, 1970, she filed a complaint charging the defendant with being the father of the child.

On October 29, 1970, the defendant appeared and pleaded not guilty. The court asked if the defendant wanted a blood test and his attorney said he did. The court ordered the tests and continued the case to January 7, 1971.

On January 7, 1971, the court denied the defendant's request for a jury trial, denied a motion for a change of venue, and also denied a motion for a continuance. The case was then tried by the court without a jury.

The defendant's first contention is that he was denied his statutory right to a jury trial. Section 6 of the Paternity Act (Ill. Rev. Stat. 1969, ch. 106 3/4, sec. 56), provides in part:

"At the time appointed for appearance and answer, the court shall cause an issue to be made up whether the person charged is the father of the child, which issue, upon demand of either the mother or the accused person, shall be tried by a jury."

Section 64 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, sec. 64), provides in part:

"(1) A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his answer. Otherwise, the party waives a jury."

The facts in the instant case are similar to those in People v. Stephens (1971), (133 Ill. App.2d 270 N.E.2d 212, where the court stated:

"The Civil Practice Act, which governs in paternity actions in the absence of any contrary statement in the Paternity Act itself (1967 Ill. Rev. Stat., ch. 106 3/4, sec. 64) does allow a late motion for a jury trial (1967 Ill. Rev. Stat., ch. 110, sec. 59; see, also, 1967 Ill. Rev. Stat., ch. 110A, Supreme Court Rule 183). Under both the statute and the rule, the motion will be granted but only for good cause shown. In addition, there must be notice to the other party, and the court need grant such motion only in its discretion. See, e.g., Hudson v. Leverenz, 10 Ill.2d 87, 139 N.E.2d 255.

In this case the motion for a jury demand was not made following notice to plaintiff, nor was good cause shown by the defendant. Indeed, in this instance no cause was shown at all. The trial court did not abuse its discretion when it denied a motion for a jury trial. The defendant had appeared five times before the trial court without making any demand for a jury trial. See Trapani v. Trapani, 109 Ill. App.2d 202, 248 N.E.2d 294."

• 1 It is clear the demand for a jury trial should have been made on October 29, 1969, when he appeared and made his plea of not guilty. Because of his failure to do so at that time, he waived his right and the judge did not abuse his discretion when he denied the request on January 7, 1971. As stated in Stephens v. Kasten (1943), 383 Ill. 127:

"[T]he need for a systematic order of procedure requires that there be regulation of the time when the right ...


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