Steffens v. Steffens

Mr. Presiding Justice Tuohy

delivered the opinion of the court.

Defendant, on May 7, 1948, filed her petition to vacate a decree of divorce entered for plaintiff on July 9, 1946. From an order sustaining plaintiff’s motion to strike the petition, this appeal is taken.

Plaintiff contends that defendant’s petition to vacate the decree, after term time, charging fraud and perjury committed on the trial in attempting to establish residence, comes too late.

Defendant maintains that because of the alleged fraud the court acquired only colorable jurisdiction over the parties and subject matter and that a decree so procured can be set aside on motion at any time for want of jurisdiction.

Plaintiff filed his complaint for divorce on October 1, 1945, charging desertion and alleging residence in Cook county for more than a year preceding the filing of the complaint. Defendant’s answer neither admitted nor denied the residence of the plaintiff at the time of the filing of the bill, but demanded strict proof of this fact. Other questions raised by pleadings are not germane to this appeal. On July 9, 1946, a hearing was had in the superior court of Cook county, the defendant failing to appear either in person or by counsel, and a decree of divorce was entered. On September 23,1946, a petition was filed by attorney for defendant seeking to vacate the decree of divorce and for leave to present a defense, alleging that the failure to appear and support the allegations of the answer was due to the illness of counsel. On October 7, 1946, an order was entered denying defendant’s motion.

On May 7, 1948, defendant filed a verified petition again seeking to vacate the decree of July 9, 1946, and to reinstate the cause for trial, alleging in substance that plaintiff was not a resident of Cook county, Illinois, for one year prior to October 1,1945, again setting-up neglect of counsel as the reason for the failure to appear and defend. Plaintiff filed a motion to strike, asserting that, the issue of nonresidence having been raised by the original answer and having been passed upon by the court and no appeal having been taken, the judgment order is final.

For a determination of the case it is only necessary to decide (1) whether or not residence was at issue under the pleadings in the case, and (2) whether or not jurisdiction is subject to attack some years after the court by decree found it had jurisdiction, by motion to set aside such finding on the ground that it was based on fraud and perjury.

The complaint made proper jurisdictional allegation as to residence for more than one year immediately prior to the filing of the complaint. The answer neither admitted nor denied this fact but demanded strict proof. Such allegation and counter allegation are sufficient to raise the issue of residence. Dean v. Dean, 381 Ill. 514. The question of jurisdiction thus became one of fact for the trial court’s determination. Way v. Way, 64 Ill. 406. No appeal was taken from this jurisdictional finding of the trial court within the time fixed by statute. In fact, nothing was done in connection with the matter from July 9, 1946, the date the decree was entered, until September 23, 1946, when the petition to' vacate the decree was filed, which alleged that the defendant had a good defense on the merits and that the failure to advance such defense was due to the illness of counsel. No challenge to the jurisdiction was made by this petition, and the first time the question arose was on May 7, 1948, when the proceedings hereinabove narrated were undertaken.

The fundamental rule with reference to the finality of judgments and decrees is well expressed in the case of People v. Sterling, 357 Ill. 354, in this language (p.362):

". . . we find the rule to be firmly established in American jurisprudence that a judgment of a court of competent jurisdiction, having jurisdiction of the subject and the parties by legal process duly served, where no appeal, writ of error, certiorari, review or other legal process lies for revising, reversing or affirming such judgment, or where no such process is commenced by the party who would void the judgment in the mode and at the time prescribed by law, is conclusive upon the same parties in any other proceeding in law, in equity, or before any other judicial tribunal. . . .”

Defendant argues that jurisdiction cannot be presumed and can be questioned at any time. In support of this proposition defendant cites the cases of Werner v. Illinois Cent. R. Co., 379 Ill. 559, and Meyer v. Meyer, 328 Ill. App. 408. The former case involved the question of the jurisdiction of a city court to hear a cause for personal injuries arising under the Federal Employers’ Liability Act. It was urged that city courts have no jurisdiction over a case such as the one at issue where the cause of action arose outside the territorial limits of the city. It was there held that there being no constitutional or legislative authority to hear such a cause, the city court was without jurisdiction and its judgment was a nullity. The case is readily distinguishable from the instant one where the question of the court’s jurisdiction depended upon a finding of fact of residence, an issue before the court which the court was empowered to determine. The other case relied upon, Meyer v. Meyer, is a divorce case. There it was specifically held the decree did not find that the plaintiff was a resident of Cook county at the time that the suit was filed. The case was remanded with specific directions to make a finding on the question of residence. In the instant case the question of residence was before the court below, was passed upon, and residence was found by the decree. Moreover, in the instant case there was no presumption of jurisdiction, but the question was raised by the pleadings, considered on the trial, and resolved against the defendant. The fact that the defendant, by reason of her failure to appear at the trial, offered no evidence to challenge the proof of residence offered by plaintiff is beside the point on the question of jurisdiction. No fraud or duress is indicated as a reason for her failure to appear — only the neglect of counsel. That she is bound by the acts or omissions of her counsel is not questioned on this appeal.

It is further urged that the court had only colorable jurisdiction, by reason of false testimony, to hear the case and “its decree is void and subject to collateral attack.” If we assume this to be a collateral attack, the authorities relied upon by defendant support a conclusion contrary to that urged. In the case of People v. Sterling, supra, the court, citing from the case of Greene v. Greene, 2 Gray, (Mass.) 361, said at page 362:

“. . . In the case just cited the wife sought a divorce from her husband, alleging five years’ desertion. She set forth the existence of a decree a vinculo obtained by her husband at a former term and averred that the decree was obtained by fraud and false testimony. She requested that the court hear evidence as to the fraud, collusion and false testimony by which the decree was obtained against her and that the same might be set aside and held for naught. In the course of the opinion the court said: ‘But if a new and original libel may be brought upon the ground that a former decree was obtained by false evidence, we see nothing to prevent the husband from bringing a third suit to reverse the decree of reversal on a suggestion and offer of proof that the decree of reversal was obtained on perjury, subornation of perjury and other fraud, and thus reverse the second decree and reinstate the original decree of divorce a vinculo. ’ ”

Again, at page 360, the court said:

“. . . We must therefore at the beginning of our inquiry determine whether or not it is true, as appellant contends, that fraud vitiates every transaction into which it enters, even to the extent of so far invalidating a decree of a court of competent jurisdiction that it can be held for naught by another court of equal, but no greater, jurisdiction when later called in question between the same parties, concerning the same subject matters and praying for the same relief. If such is the rule it must necessarily follow that the second litigation would be no more conclusive than the first had been, nor, for that matter, would the third or fourth, or any other number. The unqualified adoption of such a rule would be so disruptive of the orderly processes of our courts and so fatal to the well known principle that it is desirable that litigation should have an end, that we have examined the subject with some care. We find upon our examination that the rule is not as contended for . . . but quite the contrary. ’ ’

In somewhat similar language the Supreme Court of the United States expressed itself in the case of Stoll v. Gottlieb, 305 U. S. 165. At page 172 the court said:

“It is just as important that there should be a place to end as that there should be a place to begin litigation. ’ ’

The recent case of Buck v. Buck, 337 Ill. App. 520, decided by this court (Third Division), reviews a number of authorities on this subject and reaches a decision contrary to that here urged by defendant.

In the case of Cullen v. Stevens, 389 Ill. 35, which was a divorce case wherein the jurisdiction of the city court of Calumet City was challenged, the Supreme Court said (pp. 37, 38) :

“. . . A city court is a court of general jurisdiction within the limits of the city where located. It has jurisdiction to hear and determine divorce cases. Its records import verity and, in the absence of proof from its records, its decrees cannot be attacked collaterally, as its jurisdiction will be presumed. . . .”

We are of the opinion, therefore, inasmuch as the question of residence was a question of fact the same as any other material issue of fact in the case and was passed upon by the court and found by decree, which was not challenged by appeal, by bill of review, or by any other approved procedure, that the present appeal is without merit. For these reasons the order of May 25, 1948, of the superior court of Cook county sustaining plaintiff’s motion to strike defendant’s petition is affirmed.

Affirmed.

Feinberg, J., concurs.