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People Ex Rel. Harris v. Williams

NOVEMBER 29, 1972.

THE PEOPLE EX REL. JERLENE HARRIS, PLAINTIFF-APPELLEE,

v.

PHILIP WILLIAMS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EMANUEL RISSMAN, Judge, presiding.

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

The relatrix, Geraldine (Jerlene) Harris, brought an action in the Circuit Court of Cook County charging the defendant, Philip Williams, with being the father of her son, Terrell Darshay Harris. The court found him guilty and ordered him to pay $7.50 per week to the Department of Public Aid.

The defendant appeals, contending he was erroneously denied his right to a continuance and a trial by jury, the court was prejudiced against him, and the judgment was contrary to the weight of the evidence.

On July 8, 1969, Geraldine Harris, a 23-year old divorced woman, gave birth to a male child, and on February 4, 1970, she filed a complaint charging that Philip Williams was the father.

The case was set for trial on February 24, 1970. On that day the defendant's attorney filed his appearance and the case was continued but no answer was filed then or any other time. There were a total of five continuances granted, and the trial judge held the defendant for trial on the date designated in the continuance marked "final."

The defendant contends it was error to deny another continuance because his attorney represented to the court he had been held to trial in another cause and he needed time to have a witness brought into court by subpoena.

The record shows Mr. Pride, the defendant's attorney, made no representation to the court concerning another trial, and he did not comply with the applicable statute. Section 59 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, sec. 59) provides in part:

"On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.

The circumstances, terms and conditions under which continuances may be granted, the time and manner in which application therefor shall be made, and the effect thereof, shall be according to rules."

Supreme Court Rule 231 (Ill. Rev. Stat. 1969, ch. 110A, sec. 231), provides in part:

"(a) Absence of Material Evidence. If either party applies for a continuance of a cause on account of the absence of material evidence, the motion shall be supported by the affidavit of the party so applying or his authorized agent. The affidavit shall show (1) that due diligence has been used to obtain the evidence, or the want of time to obtain it; (2) of what particular fact or facts the evidence consists; (3) if the evidence consists of the testimony of a witness, his place of residence, or if his place of residence is not known, that due diligence has been used to ascertain it; and (4) that if further time is given the evidence can be procured."

• 1 In the present case there was no affidavit presented and no allegation of due diligence, merely the naked representation that the witness could not be contacted. The trial court acted within its proper exercise of discretion.

The defendant next contends the trial court had a duty to grant him a jury trial. Section 6 of the Paternity Act (Ill. Rev. Stat. 1969, ch. 106 3/4, sec. 56), provides:

"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 ...


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