{
  "id": 5256289,
  "name": "Jean Gates, Plaintiff-Appellee, v. William Gates, Defendant-Appellant",
  "name_abbreviation": "Gates v. Gates",
  "decision_date": "1963-01-18",
  "docket_number": "Gen. No. 11,664",
  "first_page": "446",
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    "id": 8837,
    "name": "Illinois Appellate Court"
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  "analysis": {
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  "last_updated": "2023-07-14T22:48:14.630720+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "McNEAL, P. J. and DOVE, J., concur."
    ],
    "parties": [
      "Jean Gates, Plaintiff-Appellee, v. William Gates, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "SMITH, J.\nDefendant-appellant invokes onr jurisdiction to review a decree of the Circuit Court of Winnebago County denying his petition for change of venue and modifying a divorce decree, by increasing payments, while he and his counsel were present in court but stood mute. The decree is reviewed here on the record and the appellant\u2019s brief. Upon motion of appellant in this court an abstract of the very short record was dispensed with. The case was not argued orally nor did the appellee file a brief.\nOn April 10, plaintiff filed her petition to show cause as to arrearages and to modify the original decree by increasing payments. It was duly noticed for hearing on April 13 before Honorable William R. Dusher. On April 12, defendant filed his verified petition for change of venue, \u201cbecause said Judge is prejudiced against him so that he cannot expect a fair trial by said judge,\u201d and that such prejudice came to the knowledge of the petitioner on April 2 in the Circuit Court Room Library. The report of trial proceedings shows the case called for hearing, a single short sentence by plaintiff\u2019s attorney stating the nature of the case and then the following:\n\u201cThe Court: \u2018Well I have had this up three or four times on the question of alimony. Motion for a change of venue. Cannot receive a fair and impartial hearing in this Court. Petition for change of venue heard and petition denied. Go ahead with the hearing.\u2019 \u201d\nCounsel for defendant then said, \u201cWe won\u2019t go ahead with the hearing.\u201d \u201cThe Court: \u2018You don\u2019t need to, hut have him stay here until I get through with the hearing, because he may be going to jail.\u2019 \u201d Then later: \u201cYou don\u2019t have to take part in the hearing. The second chapter is yon can\u2019t appeal from the hearing.\u201d The hearing then conducted consists of conversations between the court, plaintiff and plaintiff\u2019s attorney. No testimony was taken or witnesses sworn.\nThe petition for change of venue conforms to the statutory provisions. Ill Rev Stats 1961, c 146, \u00a7 1. Its summary dismissal and the subsequent proceedings fathered only a judicial wood\u2019s colt now incarnate in the decree we review. It is vacuous and a nullity. \u201cWhere the application for change of venue is made on account of the prejudice of the trial judge, the statute gives no discretion, but such judge, if the petition is in proper form and duly verified, must grant the petition and allow the change of venue. After the petition is presented, the judge named therein has no power to render any further order therein, except such as may be made in connection with the one which allows the change of venue.\u201d Simpson v. Simpson, 165 Ill App 515, at 516; Davies v. Davies, 247 Ill App 313, at 314.\nChange of venue procedures are available in a proceeding for the modification of a divorce decree. Des Chatelets v. Des Chatelets, 292 Ill App 357, 11 NE2d 13. The judge may not inquire into or determine whether or not the allegation of prejudice is true. Mockler v. Thomas & Co., 273 Ill App 121. It is sufficient that the charge is made. The reason, philosophy and policy justifying the rule has been succinctly stated as follows: \u201cIt is unthinkable under our system of laws a defendant may be required to submit his liberty and his estate to the disposal of a trial judge who is solemnly charged with prejudice against the accused.\u201d Daniel Boone Woolen Mills v. Laedeke, 238 Ill App 92 at 100; Wendt v. City of Elgin, 264 Ill App 433 at 441. This record is wholly devoid of the slightest intimation that the instant petition was not made in good faith. We can only conclude that the proceedings here reviewed are abortive of accepted judicial procedures and must be reversed.\nThe dismissal of the petition for a change of venue was improvident and the succeeding proceedings a nullity. Accordingly the cause is reversed and remanded with directions to the trial court to grant the change of venue and proceed anew.\nReversed and remanded.\nMcNEAL, P. J. and DOVE, J., concur.",
        "type": "majority",
        "author": "SMITH, J."
      }
    ],
    "attorneys": [
      "Alex J. Victor, of Rockford, for appellant.",
      "No appearance or briefs filed for appellee."
    ],
    "corrections": "",
    "head_matter": "Jean Gates, Plaintiff-Appellee, v. William Gates, Defendant-Appellant.\nGen. No. 11,664.\nSecond District, First Division.\nJanuary 18, 1963.\nAlex J. Victor, of Rockford, for appellant.\nNo appearance or briefs filed for appellee."
  },
  "file_name": "0446-01",
  "first_page_order": 456,
  "last_page_order": 459
}