{ "id": 5246341, "name": "Janice Miller, Appellee, v. Leonard J. Miller, Appellant", "name_abbreviation": "Miller v. Miller", "decision_date": "1963-09-30", "docket_number": "Gen. No. 48,988", "first_page": "214", "last_page": "219", "citations": [ { "type": "official", "cite": "43 Ill. App. 2d 214" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "77 NE2d 328", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "333 Ill App 68", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5030456 ], "year": 1947, "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/ill-app/333/0068-01" ] }, { "cite": "189 NE2d 768", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "189 NE2d 33", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "40 Ill App2d 217", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5252135 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "230" }, { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/40/0217-01" ] }, { "cite": "136 NE2d 812", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "9 Ill2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5319856 ], "weight": 2, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/9/0083-01" ] }, { "cite": "41 NE2d 977", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "314 Ill App 492", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3388643 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/ill-app/314/0492-01" ] } ], "analysis": { "cardinality": 422, "char_count": 7844, "ocr_confidence": 0.547, "pagerank": { "raw": 2.7957014127112576e-07, "percentile": 0.836372313598206 }, "sha256": "5645248234ae8bab5a15dcbacdf4540384537321f975dddd72810809f256a9a3", "simhash": "1:a7a7eca5cc74b2c8", "word_count": 1345 }, "last_updated": "2023-07-14T19:57:38.694985+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ENGLISH, PJ and BURMAN, J, concur." ], "parties": [ "Janice Miller, Appellee, v. Leonard J. Miller, Appellant." ], "opinions": [ { "text": "MB. JUSTICE MUBPHY\ndelivered the opinion of the court.\nThis is a divorce action which proceeded to a divorce decree after defendant was denied both a change of venue and leave to file a jury demand. Defendant appeals from that order, all subsequent orders and the divorce decree. The determinative question is whether the court was correct in denying defendant a change of venue.\nThe statute gives an absolute right to a change of venue to a petitioner, when his petition asserting the prejudice of the trial judge is duly made, verified, and filed in accordance with the statute. A change of venue is not a matter of practice but is a substantial right of a litigant. (Krueger v. Cummings, 314 Ill App 492, 41 NE2d 977 (1942).) \u201cThe timeliness of a motion for a change of venue depends upon the stage of the proceedings in which it is presented. The petition must be offered at the earliest practical moment and if filed after a hearing has commenced on the merits of the case it will be denied on the ground that it is filed too late. The purpose of this is to prevent a party from ascertaining the attitude of a judge on the issues of his cause and then asserting prejudice of a judge if his views are not in accord with those of the party. People v. Chambers, 9 Ill2d 83, 136 NE2d 812 [1956].\u201d (Jones v. Jones, 40 Ill App2d 217, 230, 189 NE2d 33 (1963).) It is with these principles in mind that we have examined this record.\nPlaintiff filed her complaint for divorce on September 7, 1961. Defendant answered the complaint on October 5, 1961. The decree of divorce was entered on February 6,1962, on the ground of cruelty. The decree included a finding by the court that the parties of record \u201cwere present in open Court on the following specific dates, namely: September, 19, 1961; October 13, 1961; October 20, 1961; November 30, 1961; December 15, 1961; December 21, 1961; January 12, 1962; and January 16, 1962.\u201d Alimony, child support, property rights and attorneys\u2019 fees were reserved by the decree for future consideration and after the taking of evidence as to such matters by a master in chancery.\nTwo injunction writs issued September 7, 1961, appear in an \u201cAdditional Abstract of Record\u201d filed by plaintiff. The record does not contain any order authorizing the issuance of these writs, nor do the writs contain the name of the judge entering the order. The order of November 30, 1961, continued all pending motions to December 15, 1961. These orders were entered by the instant judge who, theretofore, by order of the Executive Committee of the Superior Court, was one of two judges who had been assigned to hear all even-numbered motions \u201cin divorce, separate maintenance, and annulment cases relating to temporary-alimony, temporary support and maintenance, custody, child support, attorney\u2019s fees, ... as well as all other matters preliminary in character, for the court year commencing Tuesday, September 5, A.D. 1961. They shall also hear default, noncontested and contested divorce, separate maintenance and annulment cases assigned to them by the Assignment Judge.\u201d\nThe record shows that the orders entered on September 19,1961, October 13,1961, and October 20,1961, refer to temporary alimony and child support, the taking of a lie detector test, and the substitution of attorneys.\nAlthough no written order appears of record on December 15, 1961, it is not disputed by either side that this was the date on which the instant motion judge orally set the cause for trial on its merits on January 12, 1962, at 2:00 p. m., and before himself.\nOn December 21, 1961, after service of notice, defendant presented his verified petition for change of venue on the ground that the \u201cJudge is prejudiced against him, the Petitioner, so that he cannot expect a fair trial by said Judge. . . . that said prejudice did not come to his knowledge until December 15, 1961. \u201d\nOn December 21, 1961, the court entered an order which denied defendant\u2019s motions (1) for change of venue; (2) to place the case back on the contested trial calendar; and (3) for leave to file a jury demand. This was the last order entered before a two-day trial of the case, January 12 and 16, 1962, and the decree for divorce was entered on February 6, 1962. On March 28, 1962, the court entered an order for temporary alimony, child support and other relief. On July 30, 1962, the court entered a final order, and the instant appeal followed.\nDefendant contends that his petition for change of venne was filed in accordance with the provisions of the \u201cChange of Venue in Civil Cases\u201d statute (111 Rev Stats 1961, c 146), and that, as his petition alleges, the prejudice of the judge did not come to his knowledge until December 15,1961, more than 30 days after the return day, and that when he presented his petition on December 21, 1961, within 10 days after the prejudice of the judge came to his knowledge, there still remained 22 days before the trial date.\nPlaintiff \u201cdoes not dispute the fact that as a general rule, if a Petition for Change of Venue filed on account of prejudice of the trial judge is in proper form, the judge has no discretion and must grant the change.\u201d However, plaintiff contends that \u201cthe circumstances under which Defendant\u2019s Petition for Change of Venue was filed disclosed that it was filed too late and for the purpose of delay, and therefore was properly denied,\u201d and also that the court had considered a substantive issue.\nThe record does not support plaintiff\u2019s contention that defendant\u2019s petition \u201cwas filed too late and for the purpose of delay.\u201d On the contrary, it appears from the record that when it came to the knowledge of the defendant on December 15, 1961, that the motion judge intended to try the case on its merits, the defendant proceeded in accordance with the Change of Venue statute, alleging that the prejudice of the judge did not come to his knowledge until December 15, 1961. Under these circumstances, and as there still remained 22 days before the trial date, we hold that defendant\u2019s petition for change of venue was filed at the \u201cearliest practical moment.\u201d Jones v. Jones, 40 Ill App2d 217, 230, 189 NE2d 768.\nPlaintiff also contends that the preliminary matters considered by the instant judge bring this case within the rule that a change of venue will not be granted when \u201cthe court has considered a substantive issue in the cause\u201d (People v. Chambers, 9 Ill2d 83, 90, 136 NE2d 812 (1956)) or when the issues considered by the trial judge are \u201ca material and important part of the case\u201d (Russell v. Russell, 333 Ill App 68, 87, 77 NE2d 328 (1947)). We do not believe that the rulings in these cases are pertinent here, because it does not appear that any of the preliminary matters considered or ruled on by the court had any direct bearing on the substantive issues presented in the complaint for divorce on the grounds of cruelty.\nThis court has not considered the contention of defendant that he was improperly denied leave to file a jury demand. As this case is being remanded to the trial court for trial, it is suggested that defendant be given permission to renew his application for leave to file a jury demand, and that the application, when and if made, be considered under the then current circumstances.\nFor the reasons stated, the order denying the change of venue is reversed; the cause is remanded with directions to grant the petition for a change of venue and to vacate all orders entered after December 21, 1961, including the divorce decree.\nReversed and remanded with directions.\nENGLISH, PJ and BURMAN, J, concur.", "type": "majority", "author": "MB. JUSTICE MUBPHY" } ], "attorneys": [ "Friedman, Armstrong, Donnelly and Friedman, of Chicago, for appellant.", "Henry A. Kalcheim and Jay Erens, of Chicago, for appellee." ], "corrections": "", "head_matter": "Janice Miller, Appellee, v. Leonard J. Miller, Appellant.\nGen. No. 48,988.\nFirst District, First Division.\nSeptember 30, 1963.\nFriedman, Armstrong, Donnelly and Friedman, of Chicago, for appellant.\nHenry A. Kalcheim and Jay Erens, of Chicago, for appellee." }, "file_name": "0214-01", "first_page_order": 224, "last_page_order": 229 }