{ "id": 5275599, "name": "C. J. Robertson, et al., d/b/a Southeastern Skate Supply Company, Plaintiffs-Appellants, v. Western Bearings Company, Defendant-Appellee", "name_abbreviation": "Robertson v. Western Bearings Co.", "decision_date": "1964-06-29", "docket_number": "Gen. No. 49,501", "first_page": "173", "last_page": "181", "citations": [ { "type": "official", "cite": "50 Ill. App. 2d 173" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "291 F2d 542", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1994554 ], "opinion_index": 0, "case_paths": [ "/f2d/291/0542-01" ] }, { "cite": "370 US 626", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6169566 ], "year": 1962, "pin_cites": [ { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/us/370/0626-01" ] }, { "cite": "193 NE2d 597", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "173 NE2d 525", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "29 Ill App2d 374", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5219680 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-app-2d/29/0374-01" ] }, { "cite": "57 Ill 274", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5240459 ], "year": 1870, "pin_cites": [ { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/ill/57/0274-01" ] }, { "cite": "193 NE 2d 597", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "43 Ill App2d 408", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5246781 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-app-2d/43/0408-01" ] } ], "analysis": { "cardinality": 625, "char_count": 12393, "ocr_confidence": 0.535, "pagerank": { "raw": 4.6585172368815853e-07, "percentile": 0.927547706449295 }, "sha256": "7b85849ca4402d62593ba638dd4ae602215598efa3f2ed2d45623a5827de5a35", "simhash": "1:a74302ed7c11b91a", "word_count": 2103 }, "last_updated": "2023-07-14T21:56:26.409498+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BURMAN and KLUCZYNSKI, JJ., concur." ], "parties": [ "C. J. Robertson, et al., d/b/a Southeastern Skate Supply Company, Plaintiffs-Appellants, v. Western Bearings Company, Defendant-Appellee." ], "opinions": [ { "text": "MR. PRESIDING JUSTICE MURPHY\ndelivered the opinion of the court.\nThis is an appeal from an order dismissing plaintiffs\u2019 action for breach of contract for want of prosecution. Plaintiffs contend that the trial court abused its discretion in refusing to vacate its dismissal order on motion timely made.\nThe essential facts are not in dispute. The complaint was filed on May 21, 1959. Defendant\u2019s answer and jury demand were filed on June 26, 1959. Pretrial conferences were subsequently held, and on June 20, 1963, the cause was placed on the \u201cHold Call.\u201d Thereafter, on November 14, 1963, the clerk of the court, at the direction of the assignment judge, caused notice to be published in The Chicago Law Bulletin announcing that the instant case would be tried on November 29, 1963. The procedure followed in this regard was in conformity with the policy recommendation announced on January 25, 1963, in The Chicago Law Bulletin by the Supreme Court \u201cBacklog Committee\u201d relative to the \u201cHold Call,\u201d and which recommendation was approved by the Supreme Court. On November 29, 1963, the case was transferred to the trial call. \u201cPlaintiffs\u2019 attorneys\u2019 docket clerk inadvertently failed to notice that the case was to be transferred to the trial call on that date and she consequently failed to advise the attorney handling the case and as a result, no response was made on plaintiffs\u2019 behalf when the case was called.\u201d\nThe court, on its own motion, on November 29, 1963, entered an order dismissing the cause for want of prosecution and notified plaintiffs\u2019 attorneys who, on December 10, 1963, presented a motion to vacate the order of dismissal and to reinstate the cause. The court denied this motion, and on December 16, 1963, plaintiffs\u2019 attorneys presented the same motion and, in addition, drew the court\u2019s attention to Wright v. Chicago Transit Authority, 43 Ill App2d 408, 193 NE 2d 597 (1963). The court again denied the motion, and plaintiffs appeal from the dismissal order and from the orders denying the motions to vacate said dismissal order.\nThe record contains the questioned orders. The following is the text of the order of November 29, 1963:\n\u201cThis cause coming on to be heard upon the regular call of cases for trial; IT IS HEREBY ORDERED that the above entitled cause be and the same is hereby dismissed for want of prosecution.\u201d\nThe motion to vacate presented by plaintiffs\u2019 counsel on December 10, 1963, is set forth below. The same motion was again presented on December 16, 1963:\n\u201cNow come the plaintiffs, C. J. Bobertson, et al., by their attorneys, Stevenson, Conaghan, Hackbert, Books and Pitts, and move this honorable Court to vacate the order entered November 29, 1963 dismissing the above entitled cause for want of prosecution by reason of the fact that our docket clerk inadvertently failed to notice that this case was to come off the hold call on that date and she failed to advise the attorney handling the case and as a result, no response was made on our behalf.\u201d\nThe orders entered on December 10 and December 16, 1963, are substantially similar, and that of December 16 is set forth below:\n\u201cThis matter coming on upon the motion of plaintiffs to vacate the dismissal for want of prosecution order entered 11/29/63 and the Court being fully apprised in the . premises, IT IS HEBEBY OBDEBED that the motion be denied, cause having been called for trial from the automatic hold call.\u201d\nAt the outset, we agree with plaintiffs \u201cthat the legislature has taken great pains to make it clear that substance must prevail over form by an enactment of many years standing\u201d (Ill Rev Stats 1963, e 110, \u00a7 4), and the practice in this state has been liberal in setting aside defaults within term time, where it appears that justice will be promoted thereby. Mason v. McNamara, 57 Ill 274, 277 (1870).\nIn Dann v. Grumbiner, 29 Ill App2d 374, 173 NE2d 525 (1961), this court said (p 379):\n\u201cThe object is that justice be done between the parties, and one party is not permitted to obtain and retain an unjust advantage. The result obtained from the application of these rules depends upon the facts to which they are applied. The motion is addressed to the sound legal discretion of the court, and it is only where there is an abuse of discretion that a reviewing court will interfere. . . . Courts in this state are liberal in setting aside defaults during the term time in which they are entered, when it appears justice will be promoted. . . . \u2018The power to set aside a default and permit a defendant to have his day in court is based upon substantial principles of right and wrong and is to be exercised for the prevention of injury and the furtherance of justice.\u2019 \u201d\nPlaintiffs rely principally on Wright v. Chicago Transit Authority, 43 Ill App2d 408, 193 NE2d 597, where a tort case which had been waiting for disposition for seven years was dismissed for want of prosecution, when plaintiff\u2019s attorneys failed to answer the trial call. Plaintiff presented his timely motion to vacate, which was denied, and he appealed. In reversing, and after noting that it was not necessary \u201cto discuss the case at length as the defendant has failed to file a brief as required by Rule 7 of this court,\u201d this court said:\n\u201cPlaintiff presented his motion to vacate within 5 days after the dismissal. At the time of the dismissal the case had been awaiting disposition for 7 years. Under Sec 24a of the Limitations Act (Ill Rev Stats 1961, c 83), a plaintiff who has suffered an involuntary dismissal is given a year to file a new action without regard to whether the dismissal was due to negligence. Sec 46 of the Civil Practice Act permits joinder of a defendant, after the tolling of the Statute of Limitations where \u2018inadvertence\u2019 is present and the requirements of the section are met.\u201d\nThe opinion makes no further pronouncements, other than reversing the order denying the motion to vacate and remanding the cause with directions to allow the motion and to restore the cause to the trial calendar. We find nothing in that case that is determinative here.\nWe are not persuaded by plaintiffs\u2019 authorities that the instant situation presents an abuse of discretion for action by this court.\nThe authority of the trial court to dismiss a plaintiff\u2019s action because of his failure to prosecute is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the progress of trial calendars, and this power is of ancient origin. (Link v. Wabash R.R. Co., 370 US 626, 629 (1962).) In a well-reasoned opinion in the same case (Link v. Wabash R.R. Co., 291 F2d 542), Chief Judge Hastings said (p 546):\n\u201cCourts may exercise their inherent powers and invoke dismissal as a sanction in situations involving disregard by parties of orders, rules or settings. . . . \u2018Every litigant has the duty to comply with the reasonable orders of the court and, if such compliance is not forthcoming, the court has the power to apply the penalty of dismissal.\u2019 \u201d\nIn that case, plaintiff\u2019s action was dismissed for failure of plaintiff\u2019s counsel to appear in court for a pretrial conference scheduled for hearing on that date. The order of the trial court was affirmed at all levels.\nPursuant to paragraph 48b of the Evidence Act (111 Rev Stats 1963, c 51, 1148b, \u00a7 2), this court will take judicial notice of the history of the \u201cautomatic hold call,\u201d referred to in the order of December 10, 1963. Under date'of November 14, 1962, the Supreme Court of Illinois appointed the \u201cCook County Backlog Committee,\u201d composed of judges of the Circuit and Superior Courts of Cook County. The responsibility of the committee was to make recommendations, \u201cwith the approval of the Supreme Court, to judges of the circuit and superior courts of Cook County concerning calendar practices . . . .\u201d Pursuant to the mandate of the Supreme Court, the committee completed its \u201cAssignment Policy Recommendations,\u201d and after approval by the Supreme Court, both courts adopted the recommendations effective January 28,1963.\nThe recommendations were designed to bring about an effective reduction of the \u201cbacklog\u201d of jury cases pending in the Cook County courts and to keep a steady flow of jury trials to the trial judges and to develop a momentum of jury trial activity, so as to make available a jury trial to any ready litigant within a reasonable time after his lawsuit is at issue. \u201cAssignment Policy Recommendations\u201d which were adopted included the \u201cHold Call,\u201d the provisions of which were as follows:\n\u201cAll cases not assignable for immediate trial, because of engagement of counsel or other emergency, shall be placed on Hold Call.\n\u201cCases on this list can be, and some are expected to be, settled and dismissed.\n\u201cDismissal orders of cases on \u2018Hold Call\u2019 or \u2018Trial Call\u2019 will be entered only by Assignment Judge.\n\u201cTrial attorneys, by agreement, may restore cases to Trial Call immediately.\n\u201cAny trial lawyer, after telephone notice to office of available opponent before 4:30 p. m., may, at 9:15 a. m., next day, request case be restored to Trial Call. If opponent resists, the conflict will be determined by the Assignment Judge.\n\u201cCases restored to Trial Call at request of trial attorneys will have precedence of assignment, except as to any unassigned \u2018Alert Cases.\u2019\n\u201cCases on the Hold Call must be tried in the order of placement on the Hold Call, whenever possible, in the discretion of the Assignment Judge. If there is an available judge at any time, any ready Hold Call case may be assigned for trial.\n\u201cIt is the duty of all lawyers with cases on the Hold Call to keep in toueh with their opponents and to keep the Assignment Judge advised of unengaged status of all lawyers in each of their cases so held, to avoid deliberate delay by any attorney.\n\u201cAfter a case remains on the Hold Call for 90 days, it shall be automatically returned to the Trial Call above the Black Line, and no continuance because of engagement of counsel shall be allowed either side, except for good cause shown. No case may be transferred to Hold Call more than once.\u201d\nPlaintiffs complain that .they have \u201cwaited over four and one-half years for their day in court.\u201d This is unfortunate, and the \u201cbacklog\u201d delay is a matter of much concern and distress to the bench and bar of Cook County. However, it is apparent that the instant case was placed on the \u201cHold Call\u201d because either or both sides were not then ready for trial. At that time, both sides were on notice that the case would be automatically returned to the trial call after 90 days, to be assigned out for immediate trial, unless it had theretofore been removed from the \u201cHold Call\u201d by action of either party. In addition to both sides being placed on notice, The Chicago Law Bulletin carried an announcement that the case was to be tried on November 29, and plaintiffs\u2019 attorneys\u2019 docket clerk \u201cinadvertently failed to notice that the case was to be transferred to the trial call on that date.\u201d We note, also, that plaintiffs fail to indicate anywhere that they had taken any steps to be ready for trial on the day of automatic return to the trial call for assignment out for \u201cimmediate\u201d trial.\nWe agree that \u201cplaintiffs\u2019 single act of inadvertence\u201d has caused them a rather \u201charsh penalty,\u201d the effect of which \u201cis to require plaintiffs to begin this wait again.\u201d However, the action of the assignment judge in dismissing this case for want of prosecution obviously came about as a result of an attempt by our Supreme Court to make available a jury trial to any ready litigant within a reasonable time after his lawsuit is at issue.\nWe have concluded, after serious consideration, that the assignment judge did not abuse his discretion in denying the motions to vacate the order of November 29, 1963, which dismissed the instant cause for want of prosecution. Therefore, the orders of November 29, 1963, December 10 and December 16, 1963, are hereby affirmed.\nAffirmed.\nBURMAN and KLUCZYNSKI, JJ., concur.", "type": "majority", "author": "MR. PRESIDING JUSTICE MURPHY" } ], "attorneys": [ "Stevenson, Conaghan, Hackbert, Rooks and Pitts, of Chicago (Paul Noland, of counsel), for appellants.", "Anthony S. Ras, of River Forest, and Maurice H. Herman, of Chicago, for appellee." ], "corrections": "", "head_matter": "C. J. Robertson, et al., d/b/a Southeastern Skate Supply Company, Plaintiffs-Appellants, v. Western Bearings Company, Defendant-Appellee.\nGen. No. 49,501.\nFirst District, First Division.\nJune 29, 1964.\nRehearing denied July 17, 1964.\nStevenson, Conaghan, Hackbert, Rooks and Pitts, of Chicago (Paul Noland, of counsel), for appellants.\nAnthony S. Ras, of River Forest, and Maurice H. Herman, of Chicago, for appellee." }, "file_name": "0173-01", "first_page_order": 183, "last_page_order": 191 }