Schlegel, W. L.

English

Chicago-Kent College of Law

Chicago-Kent Law ReviewVolume 17 | Issue 4 Article 4September 1939Civil Practice Act Cases - Jury - Right to Trial byJury - Effect of Plaintiff 's Filing InadequateCounter-Affidavits to Motion to Dismiss underSection 48W. L. SchlegelFollow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreviewPart of the Law CommonsThis Notes is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion inChicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contactdginsberg@kentlaw.iit.edu.Recommended CitationW. L. Schlegel, Civil Practice Act Cases - Jury - Right to Trial by Jury - Effect of Plaintiff 's Filing Inadequate Counter-Affidavits to Motion toDismiss under Section 48, 17 Chi.-Kent L. Rev. 374 (1939).Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol17/iss4/4CHICAGO-KENT LAW REVIEWvoke a will, and that said section does not apply to the revocation of awill, or a part thereof, arising by implication of law" was discounted onthe grounds that the case merely decided that a conveyance of thebequeathed property by the testator to the legatee resulted in an ademp-tion, despite the subsequent reacquisition of the property by the testator.The Court in the instant case recognized the existence of decisions 4 inother states opposed to its holding but declined to recognize those cases asauthority in this state on the grounds that the statutory provisions of Illi-nois are materially different from those of the other jurisdictions.W. L. SCHLEGELCIVIL PRACTICE ACT CASESJURY-RIGHT TO TRIAL BY JURY-EFFECT OF PLAINTIFF'S FILING IN-ADEQUATE COUNTER-AFFIDAVITS TO MOTION TO DISMISS UNDER SECTION 48-Some light on the interpretation to be given to Subsection 31 of Section48 of the Illinois Civil Practice Act has been shed by the case of Fitz-patrick v. Pitcairn.2 The plaintiff therein, as administratrix, sued thedefendant railway company to recover for the wrongful death of herintestate. More than a year after the accident, the plaintiff amendedher complaint by adding the receivers of the defendant railway companyas additional parties defendant. The receivers filed a motion to dismissrelying on Subsection (f)3 of Section 48, and in their motion they setforth chronologically the proceedings up to that point. The plaintifffiled counter-affidavits in which she inadequately sought to explain herfailure to sue the receivers of the railway company at the outset, andshe requested a jury trial on the issues of fact alleged to be created bythe defendant's affidavits and her counter-affidavits. The trial courtrefused to dismiss the defendant's motion and thus force him to file ananswer 4 in order that a jury trial might be had. The court held that,since the plaintiff had not controverted the facts set out in the defendant'smotion, the only issue was one of law, and this holding was affirmedon appeal.The practice as outlined in Section 48 and as now interpreted inthe Fitzpatrick case thus appears to require that if the plaintiff does4 For a discussion of these cases, see 17 CHICAGO-KENT LAw REvIEw 97.1 "If, upon the hearing of such motion, the opposite party shall present affl-davits or other proof denying the facts alleged or establishing facts obviating theobjection, the court may hear and determine the same and may grant or denythe motion; but if disputed questions of fact are involved the court may deny themotion without prejudice and shall so deny it if the action is one at law and theopposite party demands that the issue be submitted to a jury." Ill. Rev. Stat. 1937,Ch. 110, § 172(3).2 371 Ill. 203, 20 N.E. (2d) 280 (1939).3 "That the cause of action did not accrue within the time limited by law forthe commencement of an action or suit thereon." Ill. Rev. Stat. 1937, Ch. 110,I 172(f).4 Under the former practice such new matter had to be introduced into therecord by an appropriate plea upon which issue could be taken and trial hadbefore the appropriate forum.NOTES AND COMMENTS 373not file counter-affidavits or other proof denying or avoiding the effectof the new matter contained in the motion to dismiss, the court mustassume the same to be true and give judgment accordingly as a matterof law. 5 It would further seem that where counter-affidavits or otherproof are offered to a motion to dismiss, the court would be compelledto deny such motion if the issue were one of fact, if the action were oneat law, and if a request for a jury trial were made.6 If either one ofthe latter two elements were missing, the court would be free to exer-cise its discretion in the matter.W. L. SCHLEGEL5 Stern v. Auerbach, 197 N.Y.S. 295 (1922), a case decided under an analogousNew York statute. The instant case would also lead to this conclusion.6 Ill. Const. of 1870, Art. II, § 5, which provides that "the right of trial by juryas heretofore enjoyed, shall remain inviolate .... ," is thus reinforced by thesection under consideration. See M. Weisbrod, "Some Observations on Section48 of the Illinois Civil Practice Act," 16 CHICAGO-KENT REVIEW 118 at 133, 136,142, 147. See also Ill. Rev. Stat. 1937, Ch. 110, § 188, for the procedure involved inthe request for jury trial.

Civil Practice Act Cases - Jury - Right to Trial by Jury - Effect of Plaintiff\u27s Filing Inadequate Counter-Affidavits to Motion to Dismiss under Section 48

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Civil Practice Act Cases - Jury - Right to Trial by Jury - Effect of Plaintiff\u27s Filing Inadequate Counter-Affidavits to Motion to Dismiss under Section 48

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