268 Ill. 416 | Ill. | 1915
delivered the opinion of the court:
The plaintiffs in error were convicted of larceny and insist that the court erred in denying their application for a change of venue on account of the prejudice of the judge. The petition for a change of venue and the accompanying affidavits complied with the statute and the right to a change of venue was therefore absolute. Cantwell v. People, 138 Ill. 602.
It is insisted on the part of the People that reasonable notice was not given of the application for a change" of venue. There had been several continuances and the case' was set for trial on September 14, 1914. On that day the plaintiffs in error, through their attorney, asked for a continuance of three weeks on account of the death of the attorney’s partner, who had had charge of the case. The motion was denied about half-past ten o’clock in the morning but a continuance was allowed until the next day. On the same day notice was served of the application for a change of venue, and the affidavits showed that knowledge of that prejudice had come to the plaintiffs in error at ten o’clock in the morning of that day.
It is insisted that no written notice of the application was required; that the plaintiffs in error knew of the alleged prejudice of the judge when they moved for a continuance of three weeks, and that they should then have given notice that they then intended to apply for a change of venue. It was not required that notice should be instantaneously given. The plaintiffs in error were entitled to take time sufficient to put their notice in writing. The reasonable requirement in regard to notice applies to both parties. The -plaintiffs in error were entitled to reasonable time to give the notice, and in view of the statements in the affidavits more than a day’s notice was impossible.
The judgment is reversed for the error in denying a change of venue and the cause is remanded for a new trial.
Reversed and remanded.
