Petition for Writ of Certiorari — Walton v. Throgmorton

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96 496 SEP 519%

OFFICE UF HE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

EDWARD WESLEY WALTON, PETITIONER

vs.

BARBARA THROGMORTON, RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO

STATE OF ILLINOIS APPELLATE COURT

FIFTH DISTRICT

PETITION FOR WRIT OF CERTIORARI

EDWARD WESLEY WALTON

POST OFFICE BOX 36

HARVARD, MASSACHUSETTS 01451

(508) 264-9189

for toctiecesere .

rele ease aa es + class a a ieee . —— . on

QUESTIONS PRESENTED FOR REVIEW

x Can a state court against

plaintiff's will set trial and subpoena

the plaintiff, who is residing out of

state, and then at trial on plaintiff's

non-appearance denying his motion to

Supply evidence dismiss his cause with

prejudice?

2. Does the judgment thus obtained

contravene due process of law as laid

down in Amendment XIV to the Federal

Constitution, Section 1?

3. Should the United States Supreme

Court, either by case decision or rule

amendment, clarify that the mandatory

nature of U. S. Supreme Court Rule 4 (a)

is a question entirely distinct from its

jurisdictional nature?

TABLE OF CONTENTS

OPINIONS BRIM. .265 eu 3s UV Saree a!

JSURLED ESE EN «0 } 6 th Oe ere ee a ee

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED. . . 1. 2 ss ee @

STATEMENT OF THE CASE. . . 2 es se wee SD

REASONS FOR GRANTING THE WRIT. ... . 5

CIC T ATS LO ce we oe ee es ee ee

one peer. are

INDEX OF APPENDICES

APPENDIX A

2nd Decision

State Court of Appeals.

APPENDIX B

2nd Decision

State Trial Court

APPENDIX C

Decision of State Supreme Court

APPENDIX D

lst Decision

State Court of Appeals.

APPENDIX E

Maps and Table.

iii

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TABLE OF AUTHORITES CITED

No cases or statutes are cited. The

presentation is based on reasoning and

principles. Citations are in the record

to June 28, 1995 (Briefs on the Merits).

CASES

STATUTES AND RULES

OTHER

Federal Election Commission MUR 4411

Mark A. Hall, The Jurisdictional Nature

of the Time to Appeal, 21 Ga. L. Rev.

399-427 (1986)

David Simmons, 36 ABAJ 711.

iv

ee a ee

fe ee

eee eee ee ee ae

OPINIONS BELOW

The opinion of the highest state

court to review the merits appears

at Appendix D and is reported at

653 N.E.2d 803

Ill. App. 5 Dist. 1995

JURISDICTION

The judgment of the Court of Appeals was

entered on December 6, 1995 (App. A).

The State Supreme Court denied

discretionary review on June 5, 1996

(App. C). The jurisdiction of this

Court is invoked under 28 U.S.C. 1251.

re A eek oman

ee ge

CONSTITUTIONAL AND STATUTORY PROVISIONS

Statutory Authority:

U.S. Const. amend. XIV, Sec. 1. !

The Fourteenth Amendment of the United

States Constitution provides, in

pertinent part:

...{(N]or shall any State deprive any

person of life, liberty, or property,

without due process of law.

STATEMENT OF THE CASE

Defense Counsel James Karraker

Grafted the will. Except for half an

acre the will leaves all of the 380 acre

Walton family farm to Plaintiff Edward

Walton's sister. Walton filed a

Petition to Set Aside the Will. The

petition which sought an equal division

of the estate was vigorously contested

by Karraker and Throgmorton. Defense

called Walton from out of state to give

deposition. Walton stayed for four

weeks to research courthouse records in

Illinois ana then returned to

Massachusetts. The farm is in Anna,

Illinois {[App. E2, Township 16].

Plaintiff Mr. Walton is a classics

professor who has taught in different

states in connection with his profession

as an educator. Walton was born in the

farmhouse and farmed with his father

before taking up a teaching career. He

helped his father to build the ponds on

the farm. Mr. Walton's father died

while Mr. Walton was teaching at

Converse College in South Carolina.

Walton's Mother Rosemary inherited the

farm. Her name is inscribed on the farm

property map [County Map, Anna,

Illinois, App. E2, Township 16].

Circuit Court at a hearing in

March, 1994, dismissed Walton's case

with prejudice. Walton taking up his

cause pro se appealed to the State

Appellate Court. Court found abuse of

discretion, reversed the case and

remanded it to the Circuit Court.

Circuit Court set trial of the case

under the same judge and as_ before

issued a subpoena, then again as_ before

dismissed with prejudice. The State

Court of Appeals has well shown in like

circumstances that such actions are

errant [App. D9, D10). Circuit Court

did not issue an order. Mr. Walton

telephoned the Circuit Court. The

information received was ambiguous.

Twenty-eight days after the trial

Walton posted to the Appeals Court a

letter "in the nature of an appeal."

Walton paid the appellate fees to both

courts. Although both parties in the

cause overlooked the error, the Appeals

Court on its own motion finding a timing

defect, which it felt compelled to

characterize as jurisdictional, barred

the appeal [App. A1-A2]. Errors in the

Circuit Court cannot be properly

reviewed, if the Appeal Court divests

itself of jurisdiction.

REASONS FOR GRANTING THE WRIT

By statute of congress the Supreme

Court may, with some exceptions, review

only final judgments of state courts.

The Supreme Court's review of state

court decisions is limited to issues of

federal law. Two federal issues in this

case figure very prominently. Subpoenas

issued beyond state boundaries, if they

are used abusively, contradict due

process on the federal level. A second

federal issue concerns jurisdiction.

The relevant questions of jurisdiction

have been treated exhaustively, with

clarity, by Professor Mark Hall [The

Jurisdictional Nature of the Time to

Appeal, 21 Ga. L. Rev. 399-427 (1986)].

Yet it is the trial court's final

judgment [App. B] that we must’ consider

here.

In the realm of human rights

freedom from arbitrary, unlawful

interference with life, with likerty,

and with property is the fundamental

claim since time immemorial. From the

Decalogue of Moses to the English Magna

Carta, and to the American Federal

Constitution, it is the original

foundation of all of our law. And yet

the abstract right must come down always

to historical particulars.

In England on June 15, 1215, at

Runnymede on the River Thames the barons

prepared a charter for King John to

sign, the Magna Carta. The heart of

this charter was Chapter 29, which read

as follows:

No freeman shall be taken or

imprisoned or disseized of his

freehold or liberties or free

customs, or outlawed, or exiled,

or in any way destroyed; nor shall

we go upon him, nor send upon him,

but by the lawful judgment of his

peers, or by the law of the land.

David Simmons noted (36 ABAJ 711)

that King John's disregard for the right

of his people to be let alone proved to

be "so outrageous that [since then] no

English King has dared to take the name

of John." The key idea in Chapter 29 of

the Great Charter is arbitrary

influence. To disestablish is to

destroy. Though one may state about

disinheritance, that no vested interest

is lost, we refer again to the same

passage as construed by the English

Parliament (A.D. 1354).

The act of Parliament reconfirming

the Magna Carta paraphrased Chapter 29

as follows, stating:

That no man .. . shall be put out

of Land or Tenement, nor taken,

nor imprisoned, nor disinherited,

nor put to death, without being

brought in Answer by due Process

of Law."

To be brought in answer means to be

summoned, as to trial. By due Process

of Law means by proper legal process.

This is the first reference in English

law to due process. Disseized means

disinherited. Disinheritance is the

exclusion of an heir from his right to

succeed to the estate or property of his

ancestor. The fundamental right of

succession is so regular and expected

that deprivation of it is almost to

deprive a citizen of his chartered

rights and immunities.

Property is placed by the

Constitution in the same category with

liberty and life. John Locke, On

Government, II, Section 190, delineates

two great principles:

Every Man is born with a double

Right: First, a Right of Freedom

to his Person, which no other Man

has a Power over, but the free

Disposal of it lies in himself.

Secondly, A Right, before any

other Man, to inherit, with his

Brethren, his Father's Goods [the

ancestral property].

"Man" in the original generic sense

means "Human Being."

Locke's first principle upholds

personal liberty. a= 6649 a liberal

principle. It entails freedom from

arbitrary process. We shall not’ send

upon a fellow citizen by legal

procedure merely. John Locke's second

principle is conservative. It enjoins

continuity and stability in the

community.

In Section 27 (II) Locke also

states:

[E] very Man has a property in his

own Person. This nobody has any

Right to but himself. The labour

of his Body, and the Work of his

Hands, we may say, are properly

his."

So Locke's first principle, of personal

liberty, embodies equity, just as it

also forbids the arbitrary subpoena.

If it is to be objected that

principles of human rights set forth in

the Magna Carta, confirmed by the

English Parliament, elucidated by John

Locke, and adopted by the American

Federal Constitution, are too broad to

be applied here, in this instance, yet

where are these principles better

tested, and from where else may they

draw their life, or find a secure

application, if not here and if not now?

For indeed, the case at bar precisely

illustrates these fundamental principles

of law just described. That is why this

Court should consider it. Treating a

procedural timing defect as innately

mandatory unjustly precludes appeal.

In the present case, subject matter

of the cause is disinheritance of a son.

Plaintiff's sister Mrs. Throgmorton took

up residence in the farmhouse with their

mother and converted her to an

evangelistic doctrine. Throgmorton also

by legal procedures aided by Mr.

Karraker converted the local Anna

Presbyterian church which our mother

attended to the same religion, altering

the church's name. Mr. Walton in regard

to the church activity, which he

believes is political, has lodged a

complaint that is under review with the

Federal Election Commission, No. 4411.

This is of national importance because

it fundamentally affects our rights

under the Constitution. In specific

effect, it works substantial prejudice

against the plaintiff, taking away home

and the farm. The church affected is

the family church.

8

As tothe Circuit Court, It is

axiomatic that a court lacking

jurisdiction over the person of a

litigant is not able to render a

personal judgment against him. In this

case the Plaintiff Mr. Walton was

treated by the Court as though a

Defendant, over whom the Court had

personal jurisdiction. May the Court

well know, Mr. Walton in a motion before

trial attempted to supply evidence to

the Circuit Court which motion was

denied [App. Bl, Court Docket Notes].

The matter is evidence of a misstatement

of fact in answer to an Interrogatory

(Number 22). A "Yes" answer, the proper

answer, indicates Barbara Throgmorton

and James L. Karraker had worked

together prior to the date of the will.

Walton has maintained that Mr. Karraker

is not his mother's lawyer, but his

Sister's. The connection between them

relates to the FEC Case (MUR 4411).

What principle of law might one

deduce from the final judgment decision

of the Union County Trial Court, October

6, 1995, that could possibly sustain

validity in any other court of law? If

this decision had been made by a higher

court, what precedential value would it

have? One should hope none at all.

Under the doctrine of stare decisis,

such a dangerous precedent would

encourage in county courts the

spontaneously arranged trials of

litigants, in absentia, with the courts

summoning from out of state or maybe out

of the country a party to their

proceedings, plaintiff or defendant, and

then settling that person's case in his

absence.

Extremist movements can be very

forceful. Plaintiff's research has

found somewhat comparable incidents of

intense political activity.

Last year in Washington State the

Democratic incumbent candidate was not

returned to office in his November

campaign for reelection as county

Sheriff, when his [Christian] Patriot

connections became known to the local

voters [Robert Crawford and Devin

Burghart, "Patriot Sheriff Loses Race,"

The Dignity Report: In Defense of

Democracy and Civil Rights (Fall,

1995)].

According to Crawford and Burghart,

a local group designating themselves as

Christian Patriots are actively linked

to another local group called Posse

Comitatus. Sheriff P. Murphy's campaign

literature "emphasized themes clearly

designed to appeal to Christian Patriots

and militia supporters, including ideas

prominent in Posse Comitatus circles."

The authors [p. 7] observe that a

tendency to aggrandize county-level

government in general, and the

office of sheriff in particular, has

been a central position in Patriot

thinking since the 1970s. The idea

of county supremacy was central to

posse comitatus advocates who

maintained that the county sheriff

held the highest legitimate

authority--at least as long as he

supported the Christian Patriot

causes and refrained from "treason."

In Washington State a militia

10

promoter, Mr. Jack McLamb, has sought to

establish his American Citizens and

Lawmen Association (ACLA) as a central

clearinghouse to organize militia.

McLamb's associate, Richard "Rick"

Dalton, as he endorsed Sheriff Murphy's

campaign, stated:

Sheriff Murphy has set up plans to

have us come and present our

Constitutional study course, the

fundamental principles of the

Constitution of the United States,

to all of his employees in the

Sheriff's Department.

In the Patriot coded language this

reference to the fundamental principles

of the Constitution means _ ([p. 6]

"rescinding or ignoring Amendments after

the first ten, including especially the

Fourteenth..." which the authors find

as a prospect "particularly troubling."

This indicates a potential for

contumacious disregard of the due

process clause of the Fourteenth

Amendment . In similar manner, the

Circuit Court action audaciously

contravenes Fourteenth Amendment legal

due process, as aptly demonstrated by

the June 28, 1995, mandate of the State

Court of Appeals [App. D].

The Constitution is fundamental

law. The practical effect of a decision

that errantly proceeds to trial and then

at trial precludes submission of

evidence, and moreover, treats the case

as adjudicated on its merits, disposing

of it with prejudice, is to violently

impugn due process and so doing to

oppugn the Constitution. It is

extravagant and deserves review.

11

We must be vigilant against all

extremist or nativist trends, overt or

covert, at any level in the federal

system, that potentiate discord within

and between the states. Such discord,

when it attacks Constitutional rights,

poses a serious threat to federal-state

comity. Supreme Court review of Walton

vs. Throgmorton can affirm the authority

of the State Appellate Court, as it

relates to the law of this case.

Therefore, the petition should be

granted.

Walton vs, Throgmorton needs to be

given a different venue which should be

at the nearby Jackson County Court in

Marion, Illinois. A Letter to the

Editor (Rene Mandel, Boston Globe, April

25, 1994) states:

After three years of dealing with

advocates of these {religious

right] groups, I am firmly

convinced that the issues have

little to do with religion and

everything to do with ... the

desire of certain groups and

individuals to seize power and

shape government to their own

ends, even if it means subverting

the democratic process. ... [These

groups sponsor] individuals who

force communities to contend

with all the emotional and

financial burden associated with

grandstanding politicians and

lawsuit-provoking actions. I view

this as a most pressing danger to

democracy.

12

CONCLUSION

This is about a heartland farm. There

are many such farms. But the

fundamental legal principles involved

apply pervasively. The petition for a

writ of certiorari should be granted.

Respectfully submitted.

Cunard. Wrst, Halter.

Edward Wesley Walton

Unit 116 Leverett

101 Swanson Road

Boxborough, Massachusetts 01719

(508) 264-9189

Post Office Box 36

Harvard, Massachusetts 01451

13

APPENDIX A

Illinois State Court of Appeals

Fifth District

Walton vs. Throgmorton

No. 5-95-0820

December 6, 1995

ORDER

This cause has been considered on

plaintiff-appellant's response to rule to

show cause and motion for leave to

supplement response; and the court, being

advised in the premises, finds:

That plaintiff-appellant wrote to

this court to provide notice that he

intends to appeal any "“appealable decree

or order that may have been issued on or

about October 6, 1995." The letter, which

was received and filed in this court on

November 6, 1995, was treated as being in

the nature of a notice of appeal. An

order was entered on the court's own

motion on November 15, 1995, directing

plaintiff-appellant to show cause why his

appeal should not be dismissed for lack of

jurisdiction where the document purporting

to vest the court with jurisdiction does

not on its face comply with the

jurisdictional requirements of Supreme

Court Rule 303(a);

That plaintiff-appellant has

responded to the rule to. show cause by

providing this court with copies of

letters written to the circuit clerk of

Union County. One letter dated November

25, 1995, reiterates a prior demand that

the circuit clerk forward to him the

transcripts of the trial court proceedings

that took place on October 6, 1995. The

other letter dated November 27, 1995,

advises the clerk of plaintiff-appellant's

belief that his letter received by this

court on November 6, 1995, vests this

court with jurisdiction over his appeal.

The supplement to the response includes a

copy of plaintiff-appellant's letter

purporting to be a notice of appeal as

Al

well as his November 27, 1995, letter to

the circuit clerk. Also contained in the

supplement are certain postal receipts of

documents mailed by plaintiff-appellant;

That plaintiff-appellant fails to

show in either his response or supplement

thereto that he has indeed filed a timely

notice of appeal with the circuit clerk of

Union County in the manner prescribed by

Supreme Court Rule 303(a) ;

That the only jurisdictional step in

the perfection of an appeal is the timely

filing of a notice of appeal. (Bean v.

Norfolk & Western Railway Co. (1980), 84

Ill. App. 3d 395, 405 N.E.2d 418.) The

letter received by this court on November

4 [November 6], 1995, does not satisfy the

jurisdictional requirements of a notice of

appeal as set forth in Supreme Court Rule

303(a) because it was not filed with the

circuit clerk. Plaintiff-appellant has

made no showing that he has taken that

necessary jurisdictional step in the

perfection of an appeal; therefore, the

appeal must be dismissed.

IT IS THEREFORE ORDERED that

plaintiff-appellant's motion to supplement

response to rule to show cause shall be,

and the same hereby is, GRANTED. IT IS

FURTHER ORDERED that the appeal of this

cause shall be, and the same hereby is,

DISMISSED for lack of jurisdiction for the

reasons set forth in the rule to. show

cause.

A2

APPENDIX B

Decision of Illinois State Trial Court

Union County Circuit Court

Walton vs. Throgmorton

No. 92-CH-15

October 6, 1995

ENTRY OF JUDGMENT

Trial Docket Notations

ADDITIONAL RECORD SHEET Page 6

Case No. 92-CH-15

Edward Wesley Walton

Vv

Barbara Throgmorton

James L. Karraker

DATE

JUDGE AND REPORTER

[Clerk's Entries]

9 21 95

9 22 95

9 25 95

Clerk mails Notice of Bench

[T)rial set for October 6 1995

c 9:00 A.M.

Proof of Service Filed.

NOTICE COMPELLING APPEARANCE

WITH PROOF OF SERVICE FILED.

[Judge's Entries]

10 6 95

Clarke/A.B. Plaintiff FTA.

Resp present w/atty.

Motion to Dismiss pursuant to

SCt Rule 237 Granted. Motion

for Leave to Supplement the

Record is denied.

Bl

10 11 95

Clarke. Court receives

correspondence from Plaintiff.

Court notes correspondence

dated 10/3, mailed "2 day"

delivery 10/5, post office

attempted delivery 10-7

(Saturday), received 10-10,

letter opened today 10-11 &

ordered filed despite no

proof of service. [Ordered]

Clerk send atty copy of

correspondence.

[Clerk's Entry]

ae ii 9S

Clerk Mails Attorney Karraker

Copy of Correspondence Filed

October 11, 1995.

B2

APPENDIX C

Illinois State Supreme Court

Walton vs. Throgmorton

No. 80618

June 5, 1996

Iliinois Supreme Court

Juleann Hornyak, Clerk

Supreme Court Building

Springfield, Illinois 62701

(217) 782-2035

June 5, 1996

Mr. Edward W. Walton

No. 80618

Edward Wesley Walton, petitioner,

Vv.

Barbara Throgmorton, respondent.

Leave to Appeal,

Appellate Court, Fifth District.

The Supreme Court today DENIED the

petition for leave to appeal in the

above entitled cause.

The mandate of this Court will issue

to the Appellate Court on June 27, 1996.

[May the Court please note: Walton has

not received a copy of any Order issued

by the Illinois Supreme Court, other

than the above-quoted letter.]

C1

APPENDIX D

Decision

Illinois State Court of Appeals

Fifth Judicial District

Walton vs. Throgmorton

No. 5-94-0307

June 28, 1995

ORDER

FILED

JUN 28 1995

NO. 5-94-0307

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

JUSTICE HOPKINS delivered the opinion of

the court:

Plaintiff, Edward W. Walton, appeals

from the dismissal with prejudice of his

petition to set aside tke will of his

mother, Rosemary G. Walton.

Walton filed a timely petition to

set aside his mother's will, claiming

that his sister, the defendant and

executor of that will, had unduly

influenced their mother in the

preparation of her will. Defendant

filed a motion to dismiss alleging that

the petition to set aside the will was

defective. The motion to dismiss was

denied on February 23, 1993, after

Walton amended his petition with leave

of court. In May 1993 this cause was

set for bench trial September 3, 1993,

but was continued on the court's motion

and reset for November 5, 1993.

Twenty-one days prior to the November 5,

1993, trial, Walton's first attorney of

record, Sheila Simon, was allowed to

withdraw. The case was reset to

February 3, 1994, on a motion by Simon.

At a status hearing on December 3, 1993,

Walton's second attorney, James Hopkins,

entered his appearance. On January 31,

1994, Hopkins was allowed to withdraw as

D1

Ee

Walton's counsel, but the trial court

refused at this time to continue the

bench trial that was set for February 3,

1994. Walton objected to that refusal

in a letter to the court, claiming a

violation of Supreme Court Rule 13(c).

434 342. 26°Ri S23 Ce) .

On February 3, 1994, the date of

the trial, Walton's third counsel of

record, Patrick Hewson, entered his

appearance and requested a continuance,

citing inadequate time to prepare. The

continuance was granted over defendant's

objection. The court ordered Walton to

pay the costs of trial preparation

through January 31, 1994. Also at this

hearing, the court ordered all discovery

completed by February 23, 1994, and then

reset the trial to March 24, 1994.

Hewson moved to withdraw on

February 22, 1994. This was Walton's

third attorney to move to withdraw

within a period of four months and 10

days. Walton had been represented by

counsel at all the hearings and on all

trial dates, although he had never

personally appeared in court. On

February 23, 1994, the date by which

discovery was to be completed, defendant

served Walton with a notice to appear,

pursuant to Supreme Court Rule 237 (134

Ill. 2d R. 237), compelling Walton:

"to appear before the Circuit Court

of Union County on February 25,

23374, Se 16:00 2.8. , and to

produce the following documents:

1. Evidence of attorney's fees

paid to all prior counsel,

including but not limited to

Sheila Simon, James Hopkins,

D2

McMeen, and Patrick Hewson."

At the February 25, 1994, hearing on

Hewson's motion to withdraw, Walton did

not appear and discovery remained

incomplete, in that depositions of the

defendant and defense counsel's

secretary had not been taken. During

the withdrawal hearing, Hewson advised

the court that he was not given

authority to conduct discovery or

otherwise engage in any activity beyond

securing the continuance granted on

February, 1994.

(Note: All following brackets and

parentheses and bracketed interjections

and parenthetical comments such as

"emphasis added" and any asterisks or

other indications of ellipsis are the

Appellate Court's.]

There is no transcript of any

proceedings of record except the

February 25, 1994, hearing on Hewson's

motion to withdraw. During this

hearing, the court dismissed Walton's

cause of action, stating:

"THE COURT : I am more

concerned about the discovery

deadline that I set for February

23rd which was an integral part of

the continuance ***, I want

there to be no question when and

if this matter is reviewed as to

the context of the decision to

allow the Motion to Continue at

that time. I specifically found

at that time that the Motion to

Continue should be granted; not

because of any violation of

discovery rules by the other side,

but simply to insure that’ there

D3

would be one last change [sic] for

a hearing on this matter on the

merits, and to assess costs to be

paid by the Plaintiff, because I

did not think that there was any

good reason for the matter to be

continued at that time other than

one last chance to try to_ get

this matter heard on the merits.

And I specifically ruled at that

time that discovery was ordered

to be completed by February 23rd.

Now, what I am hearing today is

that discovery is not completed.

Is that fair?

MR. HEWSON: That is correct,

Your Honor.

THE COURT: And the reason

that the discovery has not been

completed is because in your

client's opinion you were retained

solely to obtain a continuance as

opposed to any other function in

this case. Is that correct?

MR. HEWSON: That is

essentially correct, Your Honor.

THE COURT : During your

entire representation of your

client he has said that you,

quote, have no authority to

conduct discovery or otherwise

engage in any activity beyond the

continuance, close quote, as cited

in his Consent to Withdraw?

MR. HEWSON: That is, I

think, in essence correct? [sic]

xxx

THE COURT: Mr. Hewson, I am

going to grant your motion to

withdraw, sir. You are out of this

case as attorney for Mr. Walton,

and in fact, you may leave if you

wish.

MR. HEWSON: I don't know

if the Court would like me... I

feel I have to under Supreme Court

Rule oes Moetice of the

THE COURT: Do whatever you

think appropriate, sir.

MR. HEWSON: Thank you, Your

Honor.

THE COURT: Mr. Karraker

[defense attorney], are you

wishing to preserve your rights to

sanctions for failing to comply

with discovery?

MR. KARRAKER : Yes, Your

Honor, I am.

THE COURT: I am dismissing

this case, and I am making several

findings. First of all, the

initial Motion to Dismiss that was

filed by Mr. Karraker, was heard

by me, and to say I gave the gray

area to Mr. Walton would be an

understatement, because I have a

great desire, like all Judges and

like most people, to have cases

heard on the merits as opposed to

any technical defect with respect

to where aocase is filed or the

allegations within the case; but

it is clear to me that this is a

vexatious frivolous action that is

being pursued without any desire

to get to the merits on the part

of Mr. Walton. So, for many

reasons; one, the Plaintiff or

Mr. Karraker is requesting as a

discovery sanction ... *** As a

sanction for failure to comply

with discovery action the Court

ae or discovery orders ... the

Court finds ample grounds for

D5

dismissal as a discovery sanction.

Secondly, because these actions

are bound by the Rules of Civil

Procedure the Court finds ample

grounds to dismiss for want of

prosecution onthe part of Mr.

Walton. The Court finds that

Mr. Walton's actions with respect

to the Motion to Continue, which

was granted by the Court on

February 3rd, 1994, amounts toa

complete misrepresentation of fact

to the Court, which could in and

of itself arise to contempt of

Court, for the reason that an

attorney appeared inthis action

ostensively [sic] to take on

duties and comply with discovery

and had that purpose thwarted by

Mr. Walton himself, who refuses

to cooperate with discovery

and, in effect, misrepresented a

willingness to comply with the

Court's orders on February 3rd,

which were an integral part of

the Motion to Continue’ being

granted."

It is evident from the transcript

that the trial judge's intent was to

dismiss for reasons of discovery

sanctions even though the order also

characterized this cause as a "vexatious

frivolous action" and stated that there

were "ample grounds to dismiss this case

for want of prosecution on the part of

the Plaintiff."

A trial court should dismiss an

action only if it is apparent that no

set of facts can be proven that will

allow plaintiff to recover. (Munizza v.

City of Chicago (1991), 222 Ill. App. 3d

$0,» Bai 583 N.E.2d 561, 563.) A

reviewing court must determine whether

the allegations in the complaint, when

read most favorably to the plaintiff,

are sufficient to set forth a_ cause of

action upon which relief may be granted.

(Munizza, 222 I11. App. 34 at 52, 583

N.E.2d at 563.) This reviewing court

does not have the benefit of the

transcripts from the motion to dismiss

hearing held February 23, 1993, but’ the

record is clear that the trial court

denied defendant's motion to dismiss.

Furthermore, there is no evidence of

record and no claim made that Walton or

any of his attorneys signed any pleading

for any improper purpose. (134 Ill. 2d

R. 137.) Therefore, the trial court had

no basis from which to determine that

this was a vexatious or frivolous

action.

Section 13-217 of the Code of Civil

Procedure permits a case to be dismissed

for want of prosecution but does not

allow a dismissal for want of

prosecution to be with prejudice. "In

the actions specified in *** this Act

*** where the time for commencing an

action is limited, if *** the action is

dismissed for want of prosecution, ***

then, whether or not the time limitation

for bringing such action expires during

the pendency of such action, the

plaintiff *** may commence a new action

within one year or within the remaining

period of limitation, whichever is

greater, after *** the action is

dismissed for want of prosecution." 735

ILCS 5/13-217 (West 1992).

"(A] dismissal for want of

prosecution does not prejudice

D7

plaintiff's case nor bar a

subsequent suit on the same

issues. [Citation] Since a

dismissal with prejudice denotes

an adjudication on the merits and

is res judicata, a dismissal for

want of prosecution, by its

nature, is without prejudice.

[Citations] Therefore, a trial

judge does not have the authority

to dismiss a case for want of

prosecution with prejudice

because, if he had that power, a

right specifically conferred [by

section 13-217] would be defeated.

(Citation. ]

Supreme Court Rule 219 (c) (v) (134

Ill. 2d R. 219 (c)(v)), however, gives

the trial judge the power to dismiss an

action with prejudice for refusal to

comply with rules or orders relating to

pretrial discovery or pretrial

conferences. (134 he 2d Rules

201-218.) (Emphasis in original.)

Farrar v. Jacobazzi (1993), 245 I11.

App. 3d 26, 32, 614 N.E.2d 259, 263.

The record reflects that the trial

court dismissed this case as a discovery

sanction against Walton. The trial

judge stated that there were ample

grounds for dismissal as a discovery

sanction, although defendant did not

argue for discovery sanctions and made

no motion to _ preserve discovery

sanctions. Instead, defendant only

responded affirmatively when the court

asked if he wished to preserve the right

to sanctions for failure to comply with

discovery. We find no specific instance

of discovery abuse that merits dismissal

as a discovery sanction against Walton.

D8

To dismiss a cause of action as a

discovery sanction, the trial court must

indicate, with some specificity, grounds

to support its actions. (Martinez v.

Pfizer Laboratories Division (1991), 216

Ill. App. 3d 360, 576 N.E.2d 311.) We

can find nothing in the _ record to

support the trial court's indication

that discovery was thwarted by Walton.

The single reference to discovery

uncompleted prior to the February 23,

1994, deadline was the reference to

depositions of the defendant and defense

counsel's secretary. These depositions

were requested by Walton, and we see no

prejudice against defendant by these

depositions not being taken. Therefore,

the failure to complete discovery is not

proper grounds for dismissal.

We do acknowledge Walton's failure

to appear at the withdrawal hearing on

February 25, 1994, but a dismissal based

on his failure to appear at that time is

not proper. The sole purpose for the

February 25th hearing was to consider

Hewson's motion to withdraw. That

motion was granted a full month prior to

the trial date of March 25, 1994. It

was inappropriate to require Walton to

appear at the February 25, 1994, hearing

under Supreme Court Rule 237(b).

"The appearance at the trial

of a party *** may be required by

serving the party with a notice

designating the person who is

required to appear. The notice

also may require the production at

the trial of documents or tangible

things. If the party is a

nonresident of the county, the

court may order any terms and

D9

conditions in connection with his

appearance at the trial that are

just, including payment of his

reasonable expenses. Upon a

failure to comply with the

notice, the court may enter any

order that is just, including any

order provided for in Rule 219(c)

that may be appropriate."

(Emphasis added.) 134 Ill. 2d R.

237(b).

In the case at bar, Walton had not

failed to comply with a proper Rule

237(b) notice, since it did not compel

Walton's appearance for the date of the

previously scheduled trial. Thus, there

is no basis for a dismissal as a Rule

219(c) sanction. Dismissal might have

been an appropriate sanction against

Walton if a properly dated notice to

appear at trial had been issued and

Walton had not appeared, but this is not

the case. The trial court errantly

dismissed the case before giving Walton

an opportunity to appear and prove his

case on the date of the trial.

Additionally, there is nothing in

the record to indicate that the court

notified Walton at any prior hearing

that such a strong sanction would be

imposed by his failure to appear.

Dismissal with prejudice for abuse of

the discovery process is the most severe

sanction available to the court and is

to be employed only asa last resort,

and only in those cases where the

actions of a party show a deliberate,

contumacious, or unwarranted disregard

of the court's authority. (See Heuer

Sons Implement Co. v. Dukes (1989), 183

Ill. App. 3d 56, 58, 538 N.E.2d 1180,

D10

1181.) The facts in this record show a

disregard for the court's authority, but

without some notice to Walton that a

dismissal was imminent, we cannot find

that the dismissal was used only asa

last resort.

"Our discovery procedures are

meaningless unless a violation entails a

penalty proportionate to the gravity of

the violation. Discovery for all

parties will not be effective unless

trial courts do not countenance, and

unhesitantly impose sanctions

proportionate to. the circumstances."

(Buehler v. Whalen (1977), 70 I11. 2d

51, 67, 374 N.E.2d 460, 467.) "(T]he

purpose of sanctions under Supreme Court

Rule 219(c) is to obtain compliance with

discovery rules, rather than to dispose

of litigation as a form of punishment."

(United Excavating & Wrecking, Inc. v.

J. L. Wroan & Sons, Inc. (1976), 43 Ill.

App. 34 101, 208, 356: B.B.2d: 2460,

1163.) We recognize, from the’ record,

that the trial court and defense counsel

were frustrated by the delays that

prevented this cause from moving along

in a reasonable manner, but we must not

allow personal frustration alone to be a

cause for dismissal. Our review of the

record leads us to the conclusion that

the dismissal of plaintiff's action was

disproportionate to the circumstances,

inappropriate under Rule 219(c)(v), and,

therefore, an abuse of discretion by the

trial court.

Reversed and remanded.

MAAG, P.J., and CHAPMAN, J.,

concur.

Dil

APPENDIX E

MAPS AND TABLES

(1) State of Illinois Judicial Districts

(2) County Map of Anna, Illinois

(3) Genealogical Table

JUDICIAL DISTRICTS OF ILLINOIS APPELLATE COURT

©Forsier-Long. Inc. THE AMERICAN BENCH: Judges of the Nation

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E2

Walton family kinship

1825-1886 | 1833-1909

9 £2 Ow

Clinton Edward; Louise

ouen

1854-

1854

Winsteac Mary

Davie

1856-

1924

Emma

1858-

1934

B.P.K. Kroh Kelly Ur. 8B. a Davie

1861- (E.8.) 187?- 1866- 1868- 1870- 1873

1862 1863- 1946 1959 1936 1940 1934

1947

A 1931 &

Edward | Rosemary

Drury Gunn

(Ned) 1912-

1908- 1992

1964

David

Diefenbach, Jr.

1969-

1988

E3

Edward | Judie

Wesley | Evar

1934. 1940-

Lea Robin Dirce

Welton Walton Walton

1951 1962- 196¢-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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