Sarelas v. Alexander (132 Ill. App. 2d 380, 1971)

Mr. JUSTICE LORENZ

delivered the opinion of the court:

This is a libel action. Plaintiff appeals from orders denying his motion for summary judgment, denying his motion for relief under Section 41 of the Civil Practice Act, denying his motion for an order holding defendant Alexander in contempt of court, dismissing his complaint, and denying his motion for rehearing. Defendants cross-appeal from the denial of their motion for attorney's fees under Section 41 of the Civil Practice Act.

Plaintiff’s primary contention is that defendants’ preparation and presentation of a certain document in court constituted actionable libel. The document in issue was prepared and placed before a Judge of the Circuit Court by defendants in connection with an action then pending in that court. The portions of the document of which plaintiff complains and which he states refer to himself include the following:

“That the foregoing and numerous other careless, frivolous and impertinent statements of plaintiff in pleadings, motions and other documents on file and in open court constitute a design that is without reasonable cause in the circumstances, not in good faith, and are untrue in some instances, have imposed upon the court as well as defendants, have occasioned unnecessary expense, and are actions tantamount to contempt of this court.

That the above and foregoing is but one of a number of similar suits by plaintiff which with the instant action by him indicate a flaunting of the purposes of the courts and the acts and rules governing rights of action.”

Plaintiff filed the instant complaint on September 29, 1967. On March 14, 1968, after hearings on the defense motions the following order was entered by the court:

“THE COURT FINDS that the document complained of in the complaint was an affidavit submitted to the court in the case of Peter S. Sarelas vs. The Law Bulletin Publishing Company, et al. No. 67 L 6297, in the Circuit Court of Cook County, Law Division, and as such was a document relevant and pertinent to a judicial proceeding and therefore absolutely and unconditionally privileged; that this affidavit was submitted to a judge of this court in the course of such judicial proceeding on August 15, 1967, was stamped by the Clerk of this court on said date, and made part of the records of this court on that date, but was not formally ‘filed’ until an order granting leave to file was entered on October 5, 1967.

IT IS THEREFORE ORDERED:

1. That the complaint of plaintiff be and hereby is dismissed with prejudice and that plaintiff take nothing by this action and that defendants go hence without day;

2. That plaintiff’s motion for summary judgment be and hereby is denied;

3. That without hearing or argument the motions of the parties for relief under Section 41 of the Civil Practice Act be and hereby are denied;

4. That the motion of plaintiff for an order holding WILLIAM H. ALEXANDER in contempt of court be and hereby is denied.”

The order of March 14 was amended on the motion of defendants on April 4, 1968, by the following order:

“IT IS THEREFORE ORDERED that the order of March 14, 1968 should be amended, nunc pro tunc, by striking the following words from paragraph 2 thereof:

“* * * was stamped by the clerk of this court on said date, and made part of the records of this court on that date * * ”

Plaintiff appeals from these orders and a subsequent order entered May 29, 1968, denying a rehearing.

On appeal plaintiff argues that the trial court committed error in:

(1) finding that the subject document was privileged;

(2) granting defendants’ motion to dismiss the complaint and thereby denying plaintiff a jury trial;

(3) denying plaintiff’s motion for an order holding defendant William H. Alexander in contempt of court;

(4) denying plaintiff’s motion for rehearing;

(5) denying plaintiff’s motion for relief under par. 41 of the Civil Practice Act;

and that this court erred in:

(6) permitting the filing of a supplemental record.

We first consider plaintiff’s contention that the trial court erred in its finding that the subject document was privileged. The document was prepared by defendant Alexander in his capacity as defense counsel in an action before the Circuit Court of Cook County. (See Sarelas v. Law Bulletin Publishing, et al. (1969), 115 Ill.App.2d 205.) The defendants in that suit were the Law Bulletin Publishing Company and the instant defendants, Panning MacFarland, Jr. and Joseph G. Stadelman, Jr. The plaintiff was the instant plaintiff, Peter S. Sarelas. The document, captioned “Affidavit,” was presented to Circuit Judge Albert E. Hallet on August 15, 1967, in support of a defense motion for relief under Sections 41 and 57 (5) of the Civil Practice Act for which defendants moved for leave to file. The five page document included a recital that it was sworn to by defendant Alexander. It was, however, not signed and not notarized. Judge Hallet directed that Plaintiff be given a copy of the motion and set hearing on defendants’ motion for leave to file said motion for October 3, 1967. Leave to file was granted and the motion and a signed affidavit were filed instanter on October 5, 1967. The motion for relief was denied by the court on that same day. Meanwhile, plaintiff filed the instant complaint on September 29, 1967.

Plaintiff contends that the document in issue could not have been “filed” on either August 15th or October 5, 1967, because the trial court had entered final judgment in the suit on June 29th more than 30 days prior to August 15