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SECOND DIVISION
May 4, 2004
(Nunc pro tunc March 9, 2004)

JUSTICE BURKE delivered the opinion of the court:

Following a bench trial in this negligence action, the circuitcourt entered judgment in favor of plaintiff Richard Laba andagainst defendant Jeevan Kumar Hahay (also known as Mahay), andawarded plaintiff monetary damages. Prior to trial, defendant hadfiled a motion, seeking, among other things, leave to file a jurydemand. The court granted defendant's motion in part, but denieddefendant's request for leave to file a jury demand as untimely. Defendant filed a motion to reconsider that ruling, which the courtalso denied. On appeal, defendant contends that he was entitled toa jury trial and the trial court abused its discretion in denyinghis motions. Although plaintiff has not filed an appellee's brief,we consider the appeal under the principles set forth in FirstCapitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d128, 131-33 (1976).

On March 20, 2001, plaintiff filed a pro se complaint, alleging that defendant's negligent driving caused a collision withhis car in Oak Forest, Illinois, on February 1, 2001. Plaintiffsought monetary damages for property damage to his car and for"medical, car rental bills" arising from the accident. Plaintifffurther alleged that his bills were still rising "due to non-compliance" by defendant's insurance company, and sought a totalamount of "$13,495.40 and rising." A summons was issued, requiringdefendant to file an appearance on April 14, 2001. The summons wasreturned, indicating that defendant was not served.

On May 14, 2001, an alias summons was issued and served on thesame day. The summons required defendant to appear on June 5,2001, and to file an answer within 10 days after the day ofappearance.

On June 13, 2001, defendant filed a motion for substitution ofjudge, and a second motion "to vacate any and all defaults ordefault judgments heretofore entered and ask[ed] for leave toappear, answer, file a jury demand and/or otherwise plead, subjectto costs, 'within 7 days.'" The notices of the motions indicatedthat the motions would be heard on June 27, 2001.

Apparently on June 27, 2001, the trial court entered an order,granting defendant leave to appear, answer and otherwise pleadwithin seven days. The order also denied defendant leave to filea jury demand, stating that a jury demand "was not timely," and settrial for July 13.

On June 28, 2001, defendant filed an appearance and answer tothe complaint, which included an affirmative defense of plaintiff'salleged contributory negligence. Defendant also filed a notice toproduce that day.

The next day, defendant filed a motion to reconsider thecourt's ruling of June 27, 2001, denying his request for leave tofile a jury demand and relying on section 2-1105 of the Code ofCivil Procedure (Code), which provides that a jury demand by a defendant must be filed "not later than" the filing of his answer. 735 ILCS 5/2-1105(a) (West 2000). The half-sheet in the recordincludes an entry dated July 9, 2001, concerning a motion toreconsider, which was apparently denied.

Following a bench trial on July 13, 2001, the court grantedjudgment in favor of plaintiff in the amount of "$9,569.45 andCosts. ($211.40)."

On appeal, defendant contends that he was entitled to a trialby jury because his jury demand was due at the time he filed hisanswer under section 2-1105 of the Code. 735 ILCS 5/2-1105(a)(West 2000). We agree.⁽¹⁾

The issue here involves the application of a particularstatutory section, which is a question of law, and our review is denovo. See State Farm Insurance Co. v. Kazakova, 299 Ill. App. 3d1028, 1031 (1998).

Section 2-1105(a) provides that "[a] defendant desirous of atrial by jury must file a demand therefor not later than the filingof his or her answer." 735 ILCS 5/2-1105(a) (West 2000). That is,a defendant who desires a jury trial must file a jury demand "whenthe answer is due." Charles v. Gore, 248 Ill. App. 3d 441, 447(1993); see also Christenson v. Rincker, 288 Ill. App. 3d 185, 191(1997). The date of the filing of an answer by the defendant isthe controlling date in determining the time for filing a jurydemand. Malatesta v. Winzeler, 271 Ill. App. 3d 367, 369 (1995);Wenban v. Weiner, 23 Ill. App. 3d 561, 563 (1974). Accordingly,the time frame for filing a jury demand is linked to the filing ofthe answer.

We find Wenban analogous to the present case. In Wenban, theplaintiffs originally obtained a judgment by confession against thedefendant, which the defendant sought to vacate in order to answerthe complaint. In the present case, although no judgment wasentered, defendant filed a motion to vacate any defaults and alsosought to answer the complaint. In Wenban, after vacating thejudgment by confession, the trial court gave the plaintiff 21 daysto file an amended complaint and gave the defendant 21 days toanswer. When the defendant filed an answer to the amendedcomplaint, he included an affirmative defense and a jury demand. The defendant later made an oral motion for a trial by jury, whichthe court denied. The court then set the case on the nonjury calland ultimately entered judgment for the plaintiff without a jury. On appeal, the Wenban court considered the date the defendant filedthe answer to the amended complaint for the purpose of determiningthe timeliness of the defendant's jury demand and found that thedate of the defendant's answer was the date by or before which ajury demand had to be made. Because the defendant filed a jurydemand with the answer, the Wenban court found the jury demandtimely, reversed the trial court and remanded the cause for a jurytrial.

Here, defendant sought to file a jury demand at the same timehe would file an answer. Where the trial court extended the timefor filing an answer, the request for filing a jury demand couldnot be untimely. Because the controlling date for defendant's jurydemand was the date of the answer, we find that the trial courtimproperly denied as untimely defendant's request for leave to filea jury demand. See Malatesta, 271 Ill. App. 3d at 369.

For the reasons stated, the judgment of the circuit court isreversed and this cause is remanded for a trial by jury. SeeWenban, 23 Ill. App. 3d at 564.

Reversed and remanded.

CAHILL and McBRIDE, JJ., concur.

1. We briefly note that the record is silent regarding thereason why the trial court ruled that defendant's jury demand wasnot timely.