{ "id": 5009694, "name": "George T. Adcock et al., Appellants, v. Joe Adcock et al., Appellees", "name_abbreviation": "Adcock v. Adcock", "decision_date": "1950-02-21", "docket_number": "Gen. No. 10,363", "first_page": "543", "last_page": "551", "citations": [ { "type": "official", "cite": "339 Ill. App. 543" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "332 Ill. 89", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5213078 ], "opinion_index": 0, "case_paths": [ "/ill/332/0089-01" ] }, { "cite": "115 N. Y. S. 92", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 7660005 ], "opinion_index": 0, "case_paths": [ "/nys/115/0092-01" ] }, { "cite": "68 Ill. 144", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2626323 ], "opinion_index": 0, "case_paths": [ "/ill/68/0144-01" ] }, { "cite": "63 Mont. 76", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 4770343 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/mont/63/0076-01" ] }, { "cite": "227 Ala. 421", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3646498 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ala/227/0421-01" ] }, { "cite": "218 S. W. 1085", "category": "reporters:state_regional", "reporter": "S.W.", "case_ids": [ 8271631 ], "opinion_index": 0, "case_paths": [ "/sw/218/1085-01" ] }, { "cite": "383 Ill. 127", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2486401 ], "opinion_index": 0, "case_paths": [ "/ill/383/0127-01" ] }, { "cite": "305 Ill. 503", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2430832 ], "opinion_index": 0, "case_paths": [ "/ill/305/0503-01" ] }, { "cite": "235 Ill. 319", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8500118 ], "opinion_index": 0, "case_paths": [ "/ill/235/0319-01" ] }, { "cite": "249 Ill. 416", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5645575 ], "opinion_index": 0, "case_paths": [ "/ill/249/0416-01" ] }, { "cite": "324 Ill. 543", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2444321 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/324/0543-01" ] }, { "cite": "103 Ill. App. 336", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2588098 ], "opinion_index": 0, "case_paths": [ "/ill-app/103/0336-01" ] }, { "cite": "115 Ill. 558", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2876858 ], "opinion_index": 0, "case_paths": [ "/ill/115/0558-01" ] }, { "cite": "264 Ill. App. 44", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3296781 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app/264/0044-01" ] }, { "cite": "282 Ill. App. 502", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3250249 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app/282/0502-01" ] }, { "cite": "112 A. L. R. 593", "category": "reporters:specialty", "reporter": "A.L.R.", "pin_cites": [ { "page": "594" } ], "opinion_index": 0 }, { "cite": "87 Ill. 115", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5343000 ], "opinion_index": 0, "case_paths": [ "/ill/87/0115-01" ] } ], "analysis": { "cardinality": 679, "char_count": 12763, "ocr_confidence": 0.546, "pagerank": { "raw": 2.56581084446381e-07, "percentile": 0.8157846268257338 }, "sha256": "9e0bf5aec84d9335a40b4ec5d270bc965d4dfc8e33aa30818be82fbe77fd2ee6", "simhash": "1:d602b3219f91e695", "word_count": 2124 }, "last_updated": "2023-07-14T14:59:04.256225+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "George T. Adcock et al., Appellants, v. Joe Adcock et al., Appellees." ], "opinions": [ { "text": "Mr. Justice Bristow\ndelivered the opinion of the court.\nPlaintiffs, heirs-at-law of the testator, Stonewall J. Adcock, are appealing from a judgment of the circuit court of Warren county dismissing, for want of prosecution, their complaint to contest the decedent\u2019s purported will on the grounds of duress and mental incompetency.\nThe sole question presented herein is whether the trial court erred in dismissing the case for want of prosecution where there had been one prior continuance, and plaintiffs\u2019 counsel was actually engaged on the day the cause was set for hearing in the trial of another case which he had endeavored, without avail, to have continued.\nThe facts appearing from the pleadings and affidavits are that the testator died on March 18,1947, leaving an estate worth approximately $47,600, which he disposed of by a will designating persons other than heirs-at-law as beneficiaries, and referring to them as kin, although, they were in no way related to him. The testator\u2019s only heirs-at-law apparently were first cousins, 15 of which are plaintiffs herein, and the remaining four other cousins were designated as defendants along with five persons named as beneficiaries under the will. The will was prepared by one of defendants \u2019 attorneys.\nThe cause was originally set for hearing on October 6, 1948, but due to the absence of a material witness it was postponed for trial to December 6, 1948. It appears, however, that plaintiffs\u2019 attorney represented certain other clients who were defendants in an eminent domain proceeding instituted in the Rock Island county court on May 17, 1948. \"When the court in that proceeding announced, on November 15, 1948, that the trial would be set for November 29, plaintiffs\u2019 attorney immediately moved for a continuance of the eminent domain case, and alleged in his motion that the instant will contest had been set for trial on December 6 in Warren county; that opposing counsel herein objected to any continuance; that the eminent domain case would require at least three weeks for trial; and that no other member of his firm was familiar with the issues involved in either case.\nThe Rock Island county court denied that motion on November 22,1948, on the ground that a proceeding under the Eminent Domain Act is a summary one, and that, if there were any delays, damage would re-suit to the State, since some contracts had already been allowed. That cause, thereupon, proceeded to trial.\nOn December 2, when it was apparent that the case would still be in trial on December 6, plaintiffs \u2019 attorney informed the circuit judge presiding in the instant case of his inability to participate in the trial of the will contest on December 6, since the eminent domain proceeding in Bock Island would still be in progress. The circuit court judge reputedly stated, both to plaintiff George T. Adcock, and to his attorney, that a continuance would depend entirely upon the consent of defendants\u2019 counsel.\nOn December 3, defendants\u2019 attorney was apprised of the situation, and, on December 4, a formal motion for continuance, properly verified by affidavits setting forth the circumstances and conflicting trials, was filed by plaintiffs \u2019 attorney in the instant case. The motion was denied by the court on December 6 on the ground that the case, \u201cby agreement of solicitors was specially set for December 6, 1948,\u201d and the court granted defendants \u2019 motion to dismiss the cause for want of prosecution, from which judgment plaintiffs have appealed.\nIn determining whether the circuit court erred in dismissing plaintiffs\u2019 complaint for want of prosecution, this court will examine the relevant statutory provisions and the rules promulgated thereunder, and analyze the precedent established by this and other jurisdictions, inasmuch as this issue has not received abundant attention or clarification in this State.\nThe relevant portions of par. 183 of the Civil Practice Act (ch. 110, Ill. Rev. Stats. 1947 [Jones Ill. Stats. Ann. 104.059]) provides:\n\u201cAdditional time may be granted on good cause shown in the discretion of the court, and on such terms as may be just, for the doing of any act or the taking of any step or proceeding prior to judgment in any civil action. . . . 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.\u201d\nThe applicable rules prescribed by the Supreme Court do not set forth any arbitrary standards for the granting or denial of a motion for continuance. Par. 259.8, subpar. (5) [Jones Ill. Stats. Ann. 105.08, sub-par. (5)] provides:\n\u201cThe judge for good cause shown on special motion after notice to the opposite party may extend the time for putting in any pleading, or the doing of any act which is required by the rules to be done within a limited time, either before or after the expiration of the time.\nIn par. 259.14 [Jones Ill. Stats. Ann. 105.14] which specifically pertains to motions for continuances, and the practice thereon, it is provided:\n\u2018 \u2018 The court may on its own motion, or with the consent of the adverse party, continue a cause for trial to a later day.\u201d\nThe following paragraph specifies:\n\u201cNo 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.\u201d\nThus it appears that the Civil Practice Act and the Supreme Court Buies confer broad discretion upon the trial court in the allowance or denial of continuances. This discretion, however, must be exercised judiciously, and not arbitrarily or capriciously. A court should not refuse a continuance where the ends of justice clearly require it, and an abuse of discretion in so doing will justify a reversal. (Hearson v. Graudine, 87 Ill. 115, 112 A. L. R. 593, 594; In re Estate of Weiss v. Berkovitz, 282 Ill. App. 502; Crystal Lake Country Club v. Scanlan, 264 Ill. App. 44.)\nIn the early case of Hearson v. Graudine, supra, where the trial court refused a continuance and entered judgment against the party whose counsel was engaged in another proceeding, the court stated, in reversing the decision, \u201cOf course, a sound legal \u2018discretion\u2019 is meant, and any abuse of such discretion is reviewable in an appellate court as any other error committed that works palpable injustice.\u201d The court further stated that the fact that counsel was absent was no fault of defendant who should not be deprived of presenting his meritorious defense merely because his counsel was not present.\nIn determining whether there was a proper exercise of discretion in allowing or denying a continuance where counsel is not available for trial, courts have stressed certain factors. One of these factors is that counsel must actually be engaged in another case, and not merely anticipating it, in order to warrant a continuance. (Culver v. Colehour, 115 Ill. 558.) In the Colehour case the court, after waiting two full days for counsel, refused to continue the case further, unless it was shown that counsel was actually engaged at the time.\nIt has been held that a party to an action is not entitled, as a matter of absolute right, to a continuance on account of the absence of his counsel. (Bunn v. People, 103 Ill. App. 336.) In the case of (Johnson v. Theodoron, 324 Ill. 543, an affidavit for continuance was denied. Therein, the affidavit of counsel, who was a State senator, did not show that he was the only attorney employed to represent the appellant, or that he made special preparation to defend the particular action. Moreover, the case had been continued more than seven times, and had been specially set on succeeding Fridays on which there admittedly were no sessions of the assembly.\nThe determinative factor in the cases is, apparently, the degree of due diligence exercised by the party seeking the continuance. If the case has been pending over a long period and continued numerous times, a denial of a further continuance has been sustained by the reviewing courts. (Johnson v. Theodoron, supra; Spitzer v. Schlatt, 249 Ill. 416; O. S. Richardson Fueling Co. v. Seymour, 235 Ill. 319; People v. Zearing, 305 Ill. 503.)\nWhile courts are cognizant that continuances may be sought merely to delay the administration of justice, they have zealously guarded the right of a party to a day in court with counsel and a jury trial, where it has been conscientiously sought. (Stephens v. Kasten, 383 Ill. 127; Modern Woodmen of America v. Floyd (Tex. Civ. App.), 218 S. W. 1085; In re Estate of Weiss v. Berkovitz, supra.)\nIn In re Estate of Weiss v. Berkovitz, supra, the sole question was whether there was an abuse of discretion by the trial judge in denying a continuance and proceeding to trial in the absence of counsel, who was actually engaged in another court, and it was stated:\n\u201cWe are fully aware that many times excuses are offered to the court that are without merit, but in the instant case the absent attorney was actually engaged in a trial in another courtroom, and really wanted to try the case. We are of the opinion that it would be a nearer approximation of justice if the court would have so arranged his call that the lawyer for the estate could present his defense and be heard at a subsequent time. \u2019 \u2019\nThe court cited and quoted with approval Crystal Lake Country Club v. Scanlan, supra, wherein the court also reversed a decision denying a continuance when counsel was engaged in another court. The court therein stated, \u201cWe are inclined to think that the situation called for the exercise of liberality with reference to the motion to vacate, and not for a too critical attitude toward defendant\u2019s counsel.\u201d\nThe decisions of other jurisdictions are in accord with these Illinois cases. (City of Birmingham v. Gools by, 227 Ala. 421, 150 So. 322; Tallant v. Whitright, 63 Mont. 76, 206 Pac. 347.)\nThe comments and decisions in the aforementioned' Illinois cases are particularly apropos herein, where plaintiffs\u2019 counsel exhibited due diligence, first, in endeavoring to have the eminent domain proceeding postponed when he perceived a possible conflict in the trials, secondly, in notifying the court and opposing counsel of his actual engagement in another proceeding, and finally, in presenting a proper motion for continuance supported by affidavits alleging the circumstances, in accordance with the rules, in due time prior to the trial date.\nThe fact that there had been one previous continuance clearly did not indicate an intention to de-. lay the administration of justice. Mor would the fact that the case was set for trial by agreement estop a party from seeking a continuance for just cause. (St. Louis & S. E. R. Co. v. Teters, 68 Ill. 144; Harde v. Purdy, 115 N. Y. S. 92.) In the Mew York case the trial judge stated when the case was originally continued that it was understood that it would be tried on the new date \u201cat all events.\u201d However, on that date defendant\u2019s counsel submitted an affidavit that he was actually engaged in another trial. In reversing the order denying a continuance the Supreme Court stated:\n\u201cSetting a case down for trial peremptorily cannot deprive a party from having a postponement thereof, if he has legal excuse. In the case at bar the defendant had an excuse perfectly legal and universally recognized by trial justices. . . . The prior postponements did not materially affect the situation arising at the time the application for postponement was made . . . and the defendant was clearly entitled to the time asked for.\u201d\nIn the instant case, not only was the continuance denied, hut plaintiffs\u2019 cause was dismissed for want of prosecution, and a further motion to reinstate the cause was denied. It is recognized that an element entering into the dismissal of a case for want of prosecution is lack of diligence in proceeding with the law suit (O\u2019Dea v. Throm,, 332 Ill. 89), and, as hereinbefore noted, that element was conspicuously absent in the case at bar. It would appear, therefore, that the trial court committed manifest error and abused its discretion in dismissing plaintiffs \u2019 cause of action herein and in denying their motion for a continuance.\nIt is our considered judgment, in the light of the foregoing analysis, that the judgment of the circuit court should be reversed and remanded with direction to reinstate plaintiffs\u2019 complaint and set the cause for hearing.\nJudgment reversed and remanded with directions.", "type": "majority", "author": "Mr. Justice Bristow" } ], "attorneys": [ "Wood, McNeal & Warner, of Moline, for appellants.", "Safford, Kritzer & Fulton, of Monmouth, for appellees." ], "corrections": "", "head_matter": "George T. Adcock et al., Appellants, v. Joe Adcock et al., Appellees.\nGen. No. 10,363.\nOpinion filed February 21, 1950.\nReleased for publication March 13, 1950.\nWood, McNeal & Warner, of Moline, for appellants.\nSafford, Kritzer & Fulton, of Monmouth, for appellees." }, "file_name": "0543-01", "first_page_order": 565, "last_page_order": 573 }