Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

04/03/87 Steven H. Wine Et Al., v. Michael J. Bauerfreund Et

April 3, 1987

STEVEN H. WINE ET AL., PLAINTIFFS-APPELLEES

v.

MICHAEL J. BAUERFREUND ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

507 N.E.2d 155, 155 Ill. App. 3d 19, 107 Ill. Dec. 491 1987.IL.437

Appeal from the Circuit Court of Cook County; the Hon. Ellis Reid, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SULLIVAN delivered the opinion of the court. PINCHAM and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN

Defendants appeal from a judgment entered on a jury verdict of $2,207 for damages to plaintiffs' automobile, which was struck by a truck owned by On the Rocks Ice Company and driven by Michael Bauerfreund (defendants). Since the issues presented all concern rulings made by the trial court, we will incorporate the relevant facts into our Discussions thereof.

Defendants first contend that the trial court abused its discretion in denying their motion for a continuance. They argue that because (a) the motion, made on the first day set for trial, was the only request made for a continuance in this case and (b) continuances had been granted in all six of the preceding cases on that day's trial call -- some of which had been continued on previous occasions -- the court's refusal to grant them a continuance, requested for the reason that defendant was attending school out of State, was an "unforeseeable, unreasonable, arbitrary and injudicious" denial of his right to have his day in court.

The action was filed on June 25, 1985, and on July 26, counsel for defendants appeared and filed a jury demand. On October 3, 1985, defendants filed a petition for change of venue, and the case was then assigned to the trial Judge. Bauerfreund was deposed on January 8, 1986, and on January 24, the trial court set the case for trial on March 31. Although the record before us does not contain a transcript of the proceedings on the motion for a continuance, there appears to be no dispute that on March 7, 1986, plaintiffs served defendants with notice to appear for trial, pursuant to Supreme Court Rule 237(b) (87 Ill. 2d R. 237(b)), and that when the case was called at 9:30 a.m. on March 31, as scheduled, defense counsel made an oral request for a continuance for the reason that Bauerfreund was attending school in Iowa. Noting that Bauerfreund could fly or drive back for the trial, the trial court denied the motion, but granted counsel's request for a recess until 2 p.m. At that time, counsel renewed the motion, which he then presented in written form. The trial court again denied the motion, and commenced the jury selection process, which was completed the following morning, April 1. In lieu of his testimony, portions of Bauerfreund's deposition were read to the jury at trial.

It is well settled that litigants do not have an absolute right to a continuance; rather the decision to grant or deny a motion for a continuance is within the sound discretion of the trial court (Ill. Rev. Stat. 1985, ch. 110, par. 2-1007; Bean v. Norfolk & Western Ry. Co. (1980), 84 Ill. App. 3d 395, 405 N.E.2d 418; Montgomery v. Terminal R.R. Association (1979), 73 Ill. App. 3d 650, 392 N.E.2d 77) and will not be disturbed on appeal unless it has resulted in a palpable inJustice or constitutes a manifest abuse of discretion (Teitelbaum v. Reliable Welding Co. (1982), 106 Ill. App. 3d 651, 435 N.E.2d 852; Feder v. Hiera (1980), 85 Ill. App. 3d 1001, 407 N.E.2d 799; Needy v. Sparks (1977), 51 Ill. App. 3d 350, 366 N.E.2d 327). Further, as stated in section 2-1007 of the Code of Civil Procedure:

"The circumstances, terms and conditions under which continuances may be granted, the time and manner in which application therefor shall be made, and the effect thereof, shall be according to rules." Ill. Rev. Stat. 1985, ch. 110, par. 2-1007.

With respect thereto, we note that under Supreme Court Rule 231 (87 Ill. 2d R. 231), a party moving for a continuance based on the absence of a witness must first show that the expected testimony is material. (Feder v. Hiera (1980), 85 Ill. App. 3d 1001, 407 N.E.2d 799.) The rule further provides:

"(a) Absence of Material Evidence. If either party applies for a continuance of a cause on account of the absence of material evidence, the motion shall be supported by the affidavit of the party so applying or his authorized agent. The affidavit shall show (1) that due diligence has been used to obtain the evidence, or the want of time to obtain it; (2) of what particular fact or facts the evidence consists; (3) if the evidence consists of the testimony of a witness, his place of residence, or if his place of residence is not known, that due diligence has been used to ascertain it; and (4) that if further time is given the evidence can be procured.

(b) When Continuance Will Be Denied. If the court is satisfied that the evidence would not be material, or if the other party will admit the affidavit in evidence as proof only of what the absent witness would testify to if present, the continuance shall be denied unless the court, for the furtherance of Justice, shall consider a continuance necessary." (87 Ill. 2d R. 231.)

Additionally, Rule 231 states:

"(f) Time for Motion. No motion for the continuance of a cause made after the cause has been reached for trial shall be heard, unless a sufficient excuse is shown for the delay."

In accordance therewith, it generally has been held that because of the potential inconvenience to the parties, the witnesses, and the court, the movant must give especially grave reasons for requesting a continuance once the case has reached the trial stage. (Martinez v. Scandroli (1985), 130 Ill. App. 3d 712, 474 N.E.2d 456; Teitelbaum v. Reliable Welding Co. (1982), 106 Ill. App. 3d 651, 435 N.E.2d 852; Needy v. Sparks (1977), 51 Ill. App. 3d 350, 366 N.E.2d 327.) As we noted in Feder v. Hiera (1980), 85 Ill. App. 3d 1001, 1003, 407 N.E.2d 799, 801:

"We are cognizant that the trial court should zealously guard the right of a party to a day in court, but we are also vividly aware of the number and backlog of cases which confront the trial court each year and the consumption of the court's time when ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.