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Wenban v. Weiner

NOVEMBER 25, 1974.

GEORGE I. WENBAN, JR., ET AL., PLAINTIFFS-APPELLEES,

v.

JERRY R. WEINER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. HARRY D. STROUSE, JR., Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of the Circuit Court of Lake County, Illinois, in favor of the plaintiffs, George L. Wenban, Jr., and Evelyn N. Wenban, and against the defendant, Jerry R. Weiner, in the total amount of $12,670 and costs of suit. The issues are whether the trial court erred in denying the defendant a jury trial and whether it abused its discretion in refusing him a continuance.

The plaintiffs originally obtained a judgment by confession against the defendant on July 6, 1970, for unpaid rent under a written lease. On August 11, 1971, the defendant filed a verified petition in which he asked the court to vacate that judgment and grant him leave to file the verified answer attached. The petition was accompanied by affidavits and a proposed answer but not a jury demand. On August 30, 1971, the trial court entered an order which vacated the judgment by confession and provided that the plaintiffs might file an amended complaint within 21 days and the defendant should answer within 21 days of receipt of the amended complaint. Thereafter, on September 17, 1971, the plaintiffs filed an amended complaint; on October 18, 1971, the defendant filed an answer to the amended complaint, including an affirmative defense, and also a jury demand; and on January 11, 1972, the plaintiffs filed a reply to the affirmative defense and the case was at issue.

Subsequently, on July 21, 1972, the plaintiffs presented a motion for an early trial, the defendant made an oral motion for trial by jury, and the court denied the defendant's motion and set the case for trial on August 23, 1972, on the non-jury call. On August 10, the defendant's attorneys requested and were granted leave to withdraw from the case. On August 23 those attorneys filed a motion for leave to appear again for the defendant, and for a continuance of the trial because of the defendant's having an inner-ear disturbance and being unable to travel for a period of 6 to 8 weeks according to the doctor whose letter was presented with the motion. The court granted leave to appear but denied a continuance, the case proceeded to trial, in the absence of the defendant, before the court without a jury, one of the plaintiffs testified, judgment was rendered for the plaintiffs, and this appeal by the defendant followed.

• 1 The record indicates that the judgment by confession was vacated by the trial court's order of August 30, 1971, pursuant to authority given by section 72 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, § 72), rather than being opened up (see 46 Am.Jur.2d Judgments § 680 (1969)) under Supreme Court Rule 276. (Ill. Rev. Stat. 1973, ch. 110A, § 276.) The parties appear to agree that section 64 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, § 64) tells when a jury demand was due in this case, rather than Rule 276. Section 64 states: "A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his answer." We believe it was not the defendant's proposed answer filed with his motion on August 11, 1971, but his answer to amended complaint filed October 18, 1971, after the filing of the plaintiffs' amended complaint pursuant to order of court (see Western Cold Storage Co. v. Keeshin, 252 Ill. App. 165, 167), which should be considered the answer contemplated by section 64 and which therefore had to be accompanied or preceded by a jury demand if a jury was not to be deemed waived under section 64. A demand for a jury having been filed with the answer to the amended complaint, we think the jury demand was timely.

• 2, 3 If the jury demand in this case had not been filed within the time required by statute, the proper procedure would have been for the plaintiffs to file a motion to strike the demand. (Stephens v. Kasten, 383 Ill. 127, 129, 135; Vail, Mills & Armstrong v. City of Paris, 344 Ill. App. 590, 596.) Furthermore, if the jury demand had not been filed in time, the court should nevertheless have allowed the defendant a trial by jury, there being nothing in the record which shows in any way that the granting of a jury trial would have inconvenienced the court or parties litigant or prejudice any rights in any manner whatsoever (Hartsock v. Bress, 40 Ill. App.2d 66, 69; Dawson v. Maxwell, 13 Ill. App.2d 228, 231-32), and there having been no delay in the filing of the demand beyond the court's own time schedule for pleading.

In view of our disposition of the question of the defendant's right to a jury trial, it is unnecessary for us to discuss the denial of a continuance. For the reasons herein given, the judgment of the Circuit Court of Lake County is reversed and the case is remanded for a trial by jury.

Reversed and remanded.

SCOTT, P.J., concurs.

Mr. JUSTICE BARR dissenting:

I would affirm the decision of the trial court.

The brief and argument of defendant-appellant is predicated upon two grounds; that the trial court abused its discretion in denying defendant's motion for continuance, and that the trial court erred in denying defendant the right to a jury trial when a jury demand was filed contemporaneously with the filing of the answer to the amended complaint.

In this case and others of like nature where the discretion of the trial judge is involved, the appellate tribunal will not ordinarily interfere with the trial judge's discretion in the granting or denial of a motion for continuance unless there is a manifest abuse of the trial court's discretion. Parker v. Newman, 10 Ill. App.3d 1019, citing Reecy v. Reecy, 132 Ill. App.2d 1024.

Here, on July 6, 1970, judgment was entered in favor of the original plaintiff, George I. Wenban, Jr., and against the defendant, Jerry R. Weiner, on the complaint and confession of judgment on a written lease in the sum of $13,000. Subsequently, on August 11, 1971, the defendant filed a petition to open the judgment by confession, attaching his affidavit in support of the petition and answer, including an affirmative defense, which appear in the official records in this cause but not in the excerpts of the record. No jury demand was filed ...


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