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
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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.