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Tamimie v. City of Galesburg

OPINION FILED JULY 21, 1977.

HAKKI S. TAMIMIE, PLAINTIFF-APPELLANT,

v.

THE CITY OF GALESBURG ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Knox County; the Hon. U.S. COLLINS, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the circuit court of Knox County which denied a motion of the plaintiff, Hakki S. Tamimie, to vacate an order dismissing his cause of action against the defendant city and police officers.

The action underlying this appeal was a tort action for false arrest and imprisonment brought against the defendant police officers Perez and Goedke and their employer, the City of Galesbury. The plaintiff's initial complaint was filed on September 20, 1974, but was dismissed upon motion filed by the defendants as was an amended complaint. A second amended complaint was filed to which the defendants filed an answer on June 16, 1975.

Discovery depositions were taken by the parties and a pretrial conference was held on April 1, 1976. During this conference the case was set for trial in June 1976; however, pursuant to a stipulation entered into by all parties the trial date was continued to July 5, 1976. Upon discovering that this latter date was a legal holiday the trial of the case was reset for July 6, 1976.

On June 1, 1976, counsel for the defendants contacted plaintiff's attorney by letter in which he called attention to the specific setting of the trial date and further requested that they discuss various pretrial matters. No response was received by counsel for the defendants in regard to this communication. On July 2, 1976, counsel for the plaintiff during a telephone conversation with the judge of the trial court acknowledged notice of the trial date but indicated to the court that he did not believe that the plaintiff would be available for trial on July 6, 1976. During this conversation counsel for the plaintiff made an oral request for a continuance. This request was denied.

The case was called for trial on July 6, 1976, at which time prospective jurors were present, the defendants were present and witnesses had been subpoenaed. Neither the plaintiff nor his counsel were present on said date, however, at approximately 9:30 a.m. the trial judge received a telephone call from counsel for plaintiff, who informed the court that neither he nor his client would be present. The trial court then dismissed the case with prejudice.

On July 22, 1976, the plaintiff filed a verified motion to vacate the dismissal order. As grounds for relief the motion alleged that the plaintiff was a dual citizen of Iraq and the United States, that he had gone to Iraq because of the hospitalization of his mother, that while there he was attending to certain matters of business and was having some difficulty in obtaining permission to return to the United States. After hearing arguments on the motion to vacate the order of dismissal the trial court denied the same and this appeal ensued.

• 1 The plaintiff raises two issues in this appeal. The first is whether it was an abuse of discretion by the trial court to deny the plaintiff's motion for a continuance. A trial court possesses broad discretion in allowing or denying a motion for continuance. (See Ill. Rev. Stat. 1975, ch. 110, par. 59.) Such discretion, however, must be exercised judiciously and not arbitrarily. (Jancauskas v. Tow Motor Corp. (1970), 126 Ill. App.2d 289, 261 N.E.2d 753.) In the instant case we do not deem the trial court's denial of the motion for a continuance to be an abuse of discretion. The trial date was stipulated to by the parties. Counsel for the defendants corresponded with counsel for the plaintiff regarding the trial date but such correspondence went unanswered. The motion for continuance was orally made during a telephone conversation and the record fails to set forth any grounds for the same except the equivocal statement that the plaintiff might not be available.

The second and what we consider to be the paramount issue raised in this appeal is whether the trial court abused its discretion in denying plaintiff's motion to vacate the court's order dismissing the cause with prejudice.

We are cognizant of the fact that courts of review generally tend to favor the disposition of disputes on their merits; however, to unwaveringly follow this trend would strip the trial courts of their power to regulate and dispose of pending litigation which is ever increasing in our State and in some instances clogging the trial court docket. In the instant case as we read the record it supports a finding that counsel for the plaintiff on July 2, 1976, knew that his client was in the country of Iraq and would not be present for trial on July 6, 1976, yet he made the equivocal statement that he did not believe that his client would be present for trial. As a result of this equivocation the trial judge, the defendants, their counsel, witnesses and prospective jurors were present in the courtroom on July 6, 1976, ready to proceed to trial. Neither the plaintiff nor his counsel was present on said date, however, at 9:30 a.m. the trial judge received a call from counsel for the plaintiff which informed the court that they would not be present. The trial court dismissed the case and on July 27, 1976, denied a motion to vacate the dismissal order.

It is apparent that the plaintiff was in Iraq and could not be present on the scheduled trial date and this information was known to plaintiff's counsel well in advance of such date. The extraordinary circumstance of the plaintiff being in a foreign nation arose in ample time for counsel to unequivocally state to the court that his client could not be present. Counsel for plaintiff chose not to so advise the court and consequently the court, the defendants, counsel for the defendants, witnesses and prospective jurors were not only discommoded but the county of Knox was subjected to unnecessary expense and a disruption of the process of orderly disposition of pending litigation.

• 2 An appellate court is empowered to review the exercise of discretion of the trial court in granting or denying motion to set aside a judgment, but such court cannot supplant the exercise of such discretion with its own and will not interfere unless there has been a palpable abuse of such discretion. See Sarro v. Illinois Mutual Fire Insurance Co. (1962), 34 Ill. App.2d 270, 181 N.E.2d 187.

• 3 We fail to find a palpable abuse of discretion on the part of the trial court in the instant case and therefore believe that the judgment ...


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