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Rosewood Corp. v. Transamerica Ins.

OPINION FILED MAY 20, 1974.

ROSEWOOD CORPORATION, APPELLANT,

v.

TRANSAMERICA INSURANCE COMPANY ET AL., APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Nathan M. Cohen, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

In 1964 defendants Chester and Julia Fisher entered into a contract to purchase a single-family residence from Rosewood Corporation. After deducting the down payment, the balance of the purchase price was payable in monthly installments. In 1969 the Fishers defaulted in their contract payments and Rosewood Corporation brought an action for possession under the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1967, ch. 57). The Fishers sought to introduce, by way of answer, counterclaim and affirmative defense, various matters going to the validity and enforceability of the contract. On motion of Rosewood Corporation the court struck the defensive pleadings and entered judgment for possession. The Fishers appealed to this court and filed an appeal bond in the amount of $5,000, with defendant Transamerica Insurance Company as surety. This court in Rosewood Corporation v. Fisher, 46 Ill.2d 249, held that the defensive pleadings were erroneously stricken and reversed the judgment and remanded the cause to the circuit court of Cook County for further proceedings.

The statutory provisions relating to a defendant's appeal bond in forcible detainer actions provide:

"If the defendant appeals, the condition of the bond shall be that he will: (a) prosecute such appeal with effect; and (b) regardless of the outcome of such appeal, pay all rent then due or that may become due before the final determination of the suit; and (c) in case the judgment from which the appeal is taken is affirmed or appeal dismissed, pay all damages and loss which the plaintiff may sustain by reason of the withholding of the premises in controversy, and by reason of any injury done thereto during such withholding, until the restitution of the possession thereof to the plaintiff, * * *." (Emphasis added.) Ill. Rev. Stat. 1967, ch. 57, par. 20.

The appeal bond filed by the Fishers did not include as a provision thereof the statutory condition of the appeal bond italicized above.

Instead of proceeding with the case as remanded, Rosewood Corporation filed a new action praying that the appeal bond be reformed to comply with the provisions of the statute and prayed for judgment against the Fishers and the surety on the bond in the amount of $5,000, the amount of the appeal bond. Thereafter, Rosewood Corporation filed a verified petition for a change of venue which the court denied. Later the defendants filed an answer and a motion for summary judgment which the court allowed and on which judgment was entered in favor of the defendants. The appellate court affirmed (8 Ill. App.3d 592), and we granted leave to appeal.

The first issue raised by plaintiff involves the denial of its petition for a change of venue, which, omitting caption, signature and verification, is as follows:

"Now comes the petitioner, Rosewood Corporation, an Illinois corporation, plaintiff herein, and states unto the Court that it believes that it will not receive a fair and impartial trial if this cause is tried before the Honorable Nathan M. Cohen, Samuel B. Epstein, Daniel A. Covelli or Walter P. Dahl, Judges of this Court, because said Judges are prejudiced against petitioner so that it cannot expect a fair trial by said Judges. Petitioner further shows that said prejudice first came to its knowledge on or about January 4, 1971.

Petitioner prays for a change of venue in this case or for an order that said case be tried before some other Judge than the said Nathan M. Cohen, Samuel B. Epstein, Daniel A. Covelli or Walter P. Dahl pursuant to the statute in such case made and provided."

If a petition for a change of venue is timely, in proper form, and in compliance with the statute, the right to a change of venue in both civil and criminal cases is absolute. The trial judge has no discretion as to whether or not the change will be granted and cannot inquire as to the truthfulness of the allegations of prejudice. (Hoffman v. Hoffman, 40 Ill.2d 344.) Also, the provisions of the Venue Act, particularly when prejudice of the judge is charged, are to be liberally construed in order to effect rather than defeat a change of venue. Board of Education v. Morton Council West Suburban Teachers Union, 50 Ill.2d 258.

Prior to 1969 section 2 of the Venue Act (Ill. Rev. Stat. 1967, ch. 146, par. 2), concerning civil cases, provided:

"When a change of venue is granted it may be to some other court of record of competent jurisdiction in the same county, or in some other convenient county, to which there is no valid objection: Provided, that when the action is pending in either the Circuit or Superior Court of Cook County, and the only causes for a change of venue apply to one or more but not all of the judges of such court, the case may be tried before some one of the judges of such court to whom the causes do not apply."

This language may give rise to the inference that at least as applied to Cook County any number of judges may be named in a petition for change of venue charging the prejudice of the judges pursuant to section 1 of the Act. Also there are some older cases not limited to Cook County wherein this court has approved or tacitly approved charging the prejudice of more than one judge in a petition for a change of venue in civil cases. Walsh v. Ray, 38 Ill. 31; American Car and Foundry Co. v. Hill, 226 Ill. 227.

With regard to the change of venue in criminal cases based on the prejudice of a judge, the Act of 1879 contained language which is also susceptible of being construed as authorizing the naming of any number of judges in the petition for a change of venue. (Laws of 1879, p. 318.) In 1881 the language of this section (sec. 21) was further altered to authorize the change of venue for "the prejudice of the judge, or any two of them" and the exception "unless it appears, from the affidavit in support of the motion for change of venue, that the disability alleged applies to all the circuit judges of the circuit" was omitted. (Laws of 1881, p. 156; S.H.A. ch. 146, par. 21, Historical Note, p. 566.) In 1964 the statutory provision for change of venue in criminal cases was incorporated in the Code of Criminal Procedure. (Ill. Rev. Stat. 1963, ch. 38, par. 114-5.) This statute provides for an absolute right to a change of venue from two ...


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