APPEAL from the Circuit Court of Du Page County; the Hon.
PHILIP F. LOCKE, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPTION OF THE COURT:
This is an appeal from an order of the Circuit Court of Du Page County denying defendant's petition for a change of venue because of prejudice of the trial judge and from a judgment against defendant on the merits.
On November 10, 1971, plaintiffs filed a complaint for declaratory judgment requesting zoning relief. After issue was joined, the plaintiffs had the cause set down for trial on November 20, 1972, at 11 A.M. before Judge Philip F. Locke. The defendant herein defended its zoning ordinance in another case before the same judge which ran 3 days, November 14, 15 and 16, 1972. Immediately upon the conclusion of that trial, defendant's attorney prepared a petition for change of venue from Judge Locke. Concurrently, defendant prepared notice that it would be filing a petition for change of venue at the opening of court on November 20, 1972, and hand-delivered that notice to counsel for plaintiffs at about 2 o'clock on November 17.
On opening of court, November 20, the parties appeared; defendant filed its petition for change of venue which stated the belief of defendant that Judge Locke was prejudiced against them and that there would not be a fair and impartial hearing or determination of the issues if the cause was heard by Judge Locke. The petition on behalf of defendant was signed and verified by the mayor, city manager, and by defendant's attorney. Plaintiffs filed an affidavit in opposition which was considered by the court. *fn1 Defendant was given leave to file a counter-affidavit. After argument the court ruled that the petition for change of venue and notice was not timely filed and denied the petition. The defendant City then refused to participate in the trial, and after hearing plaintiffs' witnesses, the court granted the relief requested by plaintiffs. This appeal followed.
Defendant contends that its petition for change of venue met the requirements of the statute, that it had an absolute right to a change of venue since the court had not ruled on any substantive issue in the case, that the petition was in proper form, reasonable notice was given, and its denial was error. Plaintiffs contend that the petition contains a fatal error in that it does not show the time the defendant became aware of the prejudice upon which the petition is predicated, the Venue Act requires reasonable notice to be given, and what is reasonable is left to the discretion of the trial judge which discretion will not be interfered with unless abused.
Section 1 of the Venue Act (Ill. Rev. Stat. 1971, ch. 146 par. 1) provides:
"A change of venue in any civil action may be had in the following situations:
(2) Where any party or his attorney shall fear that he will not receive a fair trial in the court in which the action * * * is pending, because the inhabitants of the county are or the judge is prejudiced against him, or his attorney * * *. In any such situation the venue shall not be changed except on application, as hereinafter provided or by consent of the parties."
Section 3 of the Act describes the form and other requirements of an application as follows:
"Every application for a change of venue by a party or his attorney shall be by petition, setting forth the cause of the application and praying a change of venue, which petition shall be verified by the affidavit of the applicant. A petition for change of venue shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case * * *."
Section 5 of the Act provides for place of application and notice as follows:
"The application may be made to the court in which the case is pending, reasonable notice thereof having been given to the adverse party or his attorney."
• 1, 2 The rule is well settled that a right to a change of venue due to prejudice of a judge is absolute if the requirements of the statute are met. 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. Also, the provisions of the Venue Act, particularly when prejudice of the judge is charged, are to be liberally construed in order to effect ...