69 N.E.2d 688 | Ill. | 1946
This is a companion case to People ex rel. Kula v. O'Connell,
On November 20, 1944, plaintiffs obtained leave to amend their complaint by adding four additional paragraphs, the same to be designated as a subparagraph to the complaint. Defendants moved to strike the amendment and on January 18, 1945, the motion was sustained. It is contended that the court erred in striking the amendment.
The facts stated in the amendment were substantially the same as those pleaded in the petition for mandamus in People ex rel.Kula v. O'Connell,
Plaintiffs' right of action to contest the will on the grounds of mental incapacity and undue influence was authorized by section 90 of the Probate Act. (Ill. Rev. Stat. 1945, chap. 3, par. 242.) Independently of a statute *170
no such right existed. (Selden v. Illinois Trust and SavingsBank,
If plaintiffs' proposed amendment were permitted to stand, any issue raised thereon would be inconsistent with the purpose and prayer of the complaint. If it should be given the effect contended for by plaintiffs, it would nullify the prerequisite which is necessary under the statute to maintain the action to contest the will. The amendment was properly stricken.
On September 11, 1945, the cause was placed on the trial calendar for trial on October 3. On the date set for hearing, plaintiffs moved for a continuance on the ground that on September 21 they had filed a petition for mandamus in the circuit court against Judge O'Connell. This proceeding was the one previously referred to,
It is true that if the final judgment entered in the mandamus
action had nullified the order admitting the will to probate, such conclusion would have ended plaintiffs' right to proceed in this action. But such possibility did not make it necessary to stay the trial in this action until the other was prosecuted to a final judgment. The two actions presented separate and distinct issues and the evidence which would establish a case in the instant action was in noway involved in the mandamus suit. Plaintiffs do not claim that the pendency of the mandamus action prevented them from preparing this case for trial or interfered in the protection of their client's rights. A trial court is vested with judicial discretion in the arrangement of cases on the trial calendar, and in determining their priority, and so long as there is no abuse of that discretion its action will not be changed by a court of review. For cases involving the same principle see Benton v. Marr,
On November 1, 1945, after the cause had been dismissed on October 3, plaintiffs moved to vacate the order on the ground that it had recently been ascertained that a minor whom they had named as a party defendant had not been served with summons. There is no reason shown for the neglect of plaintiffs' counsel in not ascertaining at an earlier date that the minor had not been served with process. At any rate, the minor had no interest in the estate except by the will. The dismissal of the action for want of prosecution was in his favor and certainly plaintiffs cannot, under the circumstances, use their own neglect as a means to vacate the decree dismissing the case for want of prosecution.
The decree of the circuit court was correct and is affirmed.
Decree affirmed. *172