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Varney v. Yangas

NOVEMBER 8, 1974.

GEORGE VARNEY, JR., ET AL., PLAINTIFFS-APPELLEES,

v.

CATHERINE J. YANGAS, DEFENDANT-APPELLANT.



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

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 31, 1974.

Plaintiffs, owners collectively of a one-half undivided interest in the premises located at 153-59 West Chicago Avenue, Chicago, Illinois, brought an action for partition against defendant, owner of the remaining one-half undivided interest in said premises. This appeal is taken by defendant from the trial court's order denying her petition for a change of venue, and from the orders of the court decreeing partition and sale of the premises, approving the commissioner's report, approving the sheriff's report of sale and denying defendant leave to file a claim for damages against plaintiffs prior to disbursement of the proceeds of the sheriff's sale. *fn1

On August 17, 1972, a complaint for partition of the premises was filed by plaintiffs George Varney, Jr., Nicoletta Varney, Thomas Brown and Penelope Brown against defendants Catherine Yangas, the Mercantile Laundry Co., Inc., an Illinois corporation, and James J. Flanagan, receiver. The latter two defendants were eventually dismissed when they vacated the premises. On October 30, 1972, defendant presented a petition for a change of venue from Judge Cohen. The petition recited in pertinent part:

"2. That the affiant has good reason to believe, and does believe, that she cannot have a fair and impartial trial of this action before the Honorable Nathan M. Cohen, Judge of the Circuit Court of Cook County, Illinois, Chancery Division, before whom the said action is pending for the reason that the Honorable Judge Cohen is prejudiced and biased against her, her cause of action, and the nature of her action. That she also verily believes that Judge Francis T. Delaney, Judge Donald J. O'Brien, Judge Samuel B. Epstein and Judge James J. Mejda are biased and prejudiced against her, her cause of action and the nature of her action.

3. That the affiant has been informed, and verily believes, that the said Judges have made statements and expressed opinions which lead the affiant to believe that she cannot have an impartial and fair trial before the said Judges."

At the hearing held on October 30, 1972, defendant was represented by two attorneys, Mr. Feren and Mr. Page. It appears that Mr. Feren had prepared the petition for defendant, and that Mr. Page had been brought into the matter that morning as co-counsel. Mr. Page, however, stated that he was prepared to go ahead on the petition. Thereupon the trial court denied the petition finding it bad on its face. Following this ruling, Mr. Page stated:

"Well, your honor, may we withdraw the petition and consider the possibility of re-filing it?"

This request was also denied.

On January 11, 1973, after a denial of defendant's motion to dismiss, defendant filed her answer and counter-complaint for real estate taxes and insurance premiums advanced in the amount of $4,314.26. Plaintiffs admitted that said sum was due and owing to defendant. On February 5, 1973, the court granted plaintiffs' motion for judgment on the pleadings but ordered that defendant be paid the sum of $4,314.26 with priority from the proceeds of sale of said premises. A decree for partition was then entered which appointed Terrence O'Brien as commissioner to make partition of the property, or if the premises could not be divided, to fairly and impartially appraise the value of each piece or parcel and to make a true report to the court.

On March 7, 1973, defendant moved to vacate the decree for partition. On March 20, 1973, the trial court denied defendant's motion to vacate the decree of partition. On this date the commissioner's report appraising the property at $175,000 was presented to the trial court. At the hearing the following colloquy took place:

"MR. KATZ [Plaintiffs' attorney]: Now, my motion, Your Honor, is one for the filing of the Commissioner's report. A report has been submitted, a copy has been furnished to the defendants, and I ask that the report stand as approved. In the near future, I will submit a decree of sale.

THE COURT: All right. Any other objections?

MR. LEVIN [Defendant's attorney]: No, I have no objections to that."

The trial court thereupon approved the report of the commissioner. Furthermore, the trial court modified the decree of partition so that it would not affect the rights of the parties against the Mercantile Laundry Co., Inc., which had been the lessee of the said premises.

On April 6, 1973, with defendant's counsel present, the trial court entered a decree of sale ordering that the property be sold at public auction by the sheriff of Cook County for an amount equal to at least two-thirds of the valuation placed on the property by Commissioner O'Brien. Within the decree ...


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