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People Ex Rel. Alexander v. Keogh

OPINION FILED MARCH 17, 1980.

THE PEOPLE EX REL. PHYLLIS A. ALEXANDER, PETITIONER-APPELLANT,

v.

IGNATIUS J. KEOGH ET AL., RESPONDENTS-APPELLEES.



APPEAL from the Circuit Court of McLean County; the Hon. JAMES D. HEIPLE, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Petitioner presents her interlocutory appeal from the order of the trial court which denied a petition for substitution of judges executed, verified and filed by petitioner and by her counsel. 73 Ill.2d R. 308.

Petitioner's complaint in mandamus against the jury commissioners of McLean County challenged the procedures for jury selection. She thereafter sought leave to amend the complaint to add all judges in the judicial circuit as parties-defendant. The supreme court thereupon assigned a judge from another circuit to hear the cause.

On March 22, 1979, the assigned judge attended court upon the matter of the motion for leave to amend the complaint in mandamus. Petitioner appeared by counsel but not personally. The written order filed by the assigned judge states, in part:

"The hearing was begun and concluded and the motion was allowed without objection from Defendants' counsel."

The only judicial action taken was to order the filing of the amended complaint instanter and direct that the defendants answer or otherwise plead within 21 days.

That order further recites that in response to the court's inquiry defendants' counsel stated that he agreed that the amended complaint should be filed but that he was reserving the right to file a motion to dismiss the complaint. Incident to the inquiry, the court stated that he "was not completely satisfied" with the ruling of his predecessor judge which had denied defendants' motion to dismiss the complaint and stated that the court was "not necessarily bound" by such previous ruling.

Thereafter, on the same day, petitioner and counsel executed, verified, and filed a petition for change of venue from the judge. There is no contention that the petition is faulty as to form. Ill. Rev. Stat. 1977, ch. 110, par. 501 et seq.

The order of the trial court found:

"The undersigned Judge finds that the motion for substitution of Judge is not timely; was filed after a hearing and a ruling on a substantial matter; was based on comments of the Trial Judge which were an integral part of the hearing aforesaid; and further attempts to contravene the Order of the Illinois Supreme Court specially assigning the undersigned Judge to hear the case."

The statute providing for a change of venue states in part:

"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, * * *." (Emphasis added.) Ill. Rev. Stat. 1977, ch. 110, par. 503.

In Rosewood Corp. v. Transamerica Insurance Co. (1974), 57 Ill.2d 247, 250-51, 311 N.E.2d 673, 675, the court stated:

"If a petition for a change of venue is timely, in proper form, and in compliance with the statute, the right to a change of venue in both civil and criminal cases is absolute. The trial judge has no discretion as to whether or not the change will be granted and ...


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