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Templeton v. First Nat'l Bk. of Nashville

OPINION FILED APRIL 5, 1977.

DELMAR TEMPLETON, PLAINTIFF-APPELLEE,

v.

FIRST NATIONAL BANK OF NASHVILLE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Washington County; the Hon. FRANCIS E. MAXWELL, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Defendant First National Bank of Nashville, Illinois, appeals from a summary judgment for $5,000 in favor of plaintiff-appellee Delmar D. Templeton entered in the Circuit Court of Washington County.

The complaint, filed November 6, 1973, alleged that plaintiff was the payee in a check for $5,000 drawn on defendant bank; that he deposited the check for collection in his own bank on June 18, 1973, and that it reached defendant through normal banking channels on June 22, 1973; that defendant did not pay or return the check or send notice of dishonor until after midnight of June 23, 1973, and that, therefore, defendant became liable to plaintiff for the amount of the check under the provisions of section 4-302 of the Uniform Commercial Code (Ill. Rev. Stat. 1973, ch. 26, par. 4-302).

On November 28, 1973, defendant moved to dismiss the complaint on the ground that the document in question was not a "check" as defined by the Code, but "a demand item other than a documentary draft," because it bore the notation "Payable April 20th 1973" below the signature line. Therefore, according to defendant's argument, the document was not covered by section 4-302 of the Code. The motion was argued January 24, 1975, and denied on February 14, 1975. Defendant then filed an answer denying the material allegations of the complaint and raising again, as an affirmative defense, the contention "that the check in question is not a `check' but is a demand item other than a documentary draft * * *."

On August 12, 1975, almost two years after the complaint was filed, Alexander W. Hutchings, drawer of the instrument at issue, filed a motion to intervene as a party defendant, alleging that he was a proper party to the litigation and had a valid counterclaim against the plaintiff arising out the same subject matter. This motion was argued and denied on September 26, 1975. Hutchings did not appeal.

On October 31, 1975, W.E. Roberson, president of defendant bank, filed a motion for change of venue, alleging that he had reason to believe that he could not have a fair and impartial trial of the cause before the presiding trial judge because of the judge's bias and prejudice against him. On November 21, 1975, the motion was denied as untimely because the court had already ruled on substantial issues in the case.

On November 13, 1975, plaintiff moved for summary judgment, alleging that all material allegations of his complaint had been established by the pleadings and the discovery depositions of the defendant's president and cashier, taken September 26, 1975. After consideration of the briefs of the parties, the court granted summary judgment in favor of plaintiff on June 30, 1976.

On this appeal, defendant contends that the court erred in denying its application for change of venue, in denying Hutchings' motion to intervene and in granting summary judgment. We will discuss the issues in the order raised.

Section 1 of the Venue Act, as amended, provides in pertinent part that:

"A change of venue in any civil action may be had in the following situations:

(2) Where any party or his attorney fears that he will not receive a fair trial in the court in which the action is pending, because * * * the judge is prejudiced against him, or his attorney * * *. In any such situation the venue shall not be changed except upon application, as provided in this Act, or by consent of the parties." Ill. Rev. Stat. 1973, ch. 146, par. 1.

Section 3 provides:

"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, provided that if any grounds for such change of venue occurs thereafter, a petition for change of venue may be presented based upon such grounds." (Emphasis added.) Ill. Rev. Stat. 1973, ch. 146, par. 3.

The petition in the instant case was entitled "motion for change of venue," and read in its entirety, ...


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